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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 >> Deeb v General Medical Council [2009] EWHC 2292 (Admin) (07 July 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2292.html Cite as: [2009] EWHC 2292 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		7 July 2009

Introduction

1. MR JUSTICE CRANSTON: This is said to be an appeal against orders made by the General Medical Council's Interim Orders Panel ("the panel") made last year. In fact under the legislation there is no right to appeal such orders and the correct appeal, under section 41A (10) of the Medical Act 1983, is for an order terminating either a panel order of suspension or an order to revoke or vary conditions imposed. I have treated this as an application made in accordance with section 41A (10) of the Medical Act 1983.

Background

2. The background, in brief, is as follows. It is fair to start in 2006 when the claimant, Dr El Deeb, was a doctor at Ninewells Hospital, which is one of the hospitals under the NHS Tayside Trust ("the NHS Trust"). In that year he had made a number of public interest disclosures.
3. On 14 August 2006 there was a complaint made by a Ms JN in relation to a breast reduction operation which had been carried out by Dr El Deeb. On the following day that complaint was raised with Dr El Deeb. One particular aspect of the complaint was admitted by him, namely that he had carried out a consultation in a baby-changing facility in a Tesco supermarket. On 15 August the NHS Trust terminated the locum arrangement it had with Dr El Deeb.
4. There was correspondence on behalf of Dr El Deeb by the organisation which had placed him at the hospital, First Medical Staffing Solutions. In January 2007 they wrote to the General Medical Council (GMC) and confirmed that there had never been any other concerns or previous complaints about Dr El Deeb. They pointed out that they had investigated the matter as far as they were able. They found nothing of a clinical nature to raise concerns although they felt that Dr El Deeb had behaved naively. They were not aware of any data that might indicate poor practice. They also said:

"I am somewhat surprised by the allegations brought about by Mr Scott. They differ substantively from the allegations made against Dr El Deeb when his contract with NHS Tayside was terminated."

The letter went on to say that the treatment of Dr El Deeb was appalling and so concerned was the British Medical Association (BMA) that it had written to complain about it.

5. That letter, in a sense, anticipates what happened in July 2007. The NHS Trust had sent a letter to the GMC which enclosed a medical report, dated 14 May 2007, written by Mr John Scott who is a consultant plastic surgeon. His report was in relation to Ms JN. In his report Mr Scott said that on 16 February 2007 he had examined Ms JN and that he reviewed a copy of her medical notes from Ninewells Hospital. He recorded that he was concerned about the doctor/patient relationship between Dr El Deeb and the patient.
6. Mr Scott then set out seven concerns. First, he said that it seemed that Dr El Deeb had failed to diagnose an infection in Ms JN's right breast during the post-operative period. He said that there had been no reference to infection although Ms JN had attended the A & E department and had obtained antibiotics. Secondly, he said that Dr El Deeb had given Ms JN his mobile telephone number. Thirdly, Dr El Deeb had asked her to e.mail photographs of her breast to his home computer. Fourthly, she had been told by Dr El Deeb to perform a debriding procedure on herself. Fifthly, Dr El Deeb had arranged to meet her in a supermarket car park and had carried out a consultation in the supermarket's baby-changing facility. Sixthly, she was asked not to mention the consultation at the supermarket when she attended the next out-patient appointment at the Ninewells Hospital. Lastly, there had been further telephone conversations with Dr El Deeb and he requested that she send photographs of her breast to him.
7. In the report Mr Scott observed that he considered that Ms JN had suffered some complications, albeit that they were not uncommon in the breast reduction surgery which she had undergone. None of these matters amounted to negligence. However he, Mr Scott, was concerned about the doctor/patient relationship. For example, Ms JN's right to privacy and confidentiality had been put at risk and there was possible unprofessional behaviour and breach of good medical practice.
8. On receiving Mr Scott's report, the GMC carried out investigations. As is usual in these cases, it obtained the medical notes from the hospital. It wrote to Dr El Deeb requesting details about his work. In response, in October 2007, Dr El Deeb wrote to the GMC with certain documents. Those documents demonstrated that Dr El Deeb admitted carrying out the consultation at the Tesco supermarket. He also notified the GMC that his locum contract with the Ninewells Hospital had been terminated.
9. There was further correspondence, including a letter from Dr El Deeb to the GMC on 29 October 2007.
10. The GMC continued to investigate and finally decided to proceed before the Interim Orders Panel. The hearing was on 8 February 2008. Dr El Deeb was not present. There is a discussion recorded in the transcript as to whether or not Dr El Deeb had received the notice of the hearing. The legal assessor took the panel to the rules about the service of the notice of hearing. The chairman expressed reluctance to proceed given that Dr El Deeb had not received the full bundle. (In mid-January Dr El Deeb had e.mailed the GMC, recording that he had received the covering letter and the notice of hearing dated 14 January. That did not cover the. Bundle.) The chairman noted that Dr El Deeb had the covering letter and in particular that he had some of the documents which had been sent by e.mail immediately preceeding the hearing. The legal assessor advised the panel that the mere fact that Dr El Deeb had not received the full bundle was not determinative under the rules and that all that was necessary was that he should have the notice of hearing.
11. After further submissions and discussion with the chairman, the chairman ruled out any dishonesty on the part of Dr El Deeb and decided that it was possible to proceed with the hearing in his absence. The panel was satisfied that Dr El Deeb had been informed that the hearing was taking place.
12. The panel had Mr Scott's report, which raised the concerns mentioned about Dr El Deeb's conduct. It had the confirmation by Dr El Deeb that a picture of Ms JN's breast had been sent to his e.mail address and also that he had arranged a consultation with her at a Tesco supermarket. The panel considered the submission that Dr El Deeb showed a lack of insight given his behaviour in his relationship with this patient, Ms JN. In its determination the panel said that having considered all the information, including submissions which had been made by Dr El Deeb, it was necessary for the protection of members of the public and in the public interest to suspend Dr El Deeb's registration for a period of 18 months. It noted, in passing, that after the initial complaint steps had been taken to arrange a meeting between the NHS Trust and Dr El Deeb but that Dr El Deeb had not attended.
13. The panel underlined that it was not its function to make findings of fact, nor to decide on the veracity of the allegations. Nonetheless it had given such weight as it considered appropriate to the information before it and to the comments made by Dr El Deeb:

"The panel is concerned on the basis of the information before it about Mr El Deeb's lack of insight into these matters.

Having considered all the matters, the panel is satisfied that there may be an impairment of Mr El Deeb's fitness to practise and poses a real risk to paitents or may adversely affect the public interest or his own interests and that his remaining in unrestricted practice could seriously undermine the trust that members of the public are entitled to place in the medical profession and its practitioners."

The panel went on to consider the issue of proportionality, balancing the interests of the public and Dr El Deeb's own interest against the consequences of suspension. It decided that the period of 18 months suspension was necessary to resolve all the issues in the case.

14. Under the Medical Act 1983 that decision of February needed to be reviewed within six months. Consequently on 24 July 2008 there was a further panel hearing. On this occasion Dr El Deeb attended. He presented certain documents and made certain submissions to the panel. The chairman said at the very outset that he had to remind Dr El Deeb that it was a review hearing and "not a hearing where we go through all the evidence". Dr El Deeb said that from his point of view it was not a review hearing because it was the first time that he had been properly invited to a hearing. He had had nothing to do with the previous hearing. The chairman reminded him that he could address them later and that the hearing was not a fitness to practise hearing.
15. Dr El Deeb explained how the bundle for the February hearing had not arrived. It was on that basis that he declined to attend the earlier hearing. Dr El Deeb attempted to raise certain matters and, again, was reminded by the chairman that this was not the place where they could be determined. Dr El Deeb submitted that the information given by Ms JN in her statement was incorrect. In particular Dr El Deeb pointed out that he had not asked her to remove the steri stitches herself because the stitches she had were absorbable internally.
16. The panel in its determination said it was satisfied that there may be impairment of fitness to practise which might pose a real risk to patients and may adversely affect the public interest and Dr El Deeb's own interest. It was decided that his remaining in practise would seriously undermine the trust which the public was entitled to place in the medical profession and its practitioners. However, it was not satisfied that the order for interim suspension was necessary or proportionate in the light of the submissions it had heard from Dr El Deeb and having had further sight of the Rule 7 allegation, which did not contain any concerns relating to improper sexual conduct or about Dr El Deeb's probity or honesty.
17. Thus the panel determined that for the remainder of the duration of the order it would be sufficient if Dr El Deeb was subject to certain conditions. The panel therefore imposed 13 conditions on Dr El Deeb's practice, including provisions about notification and relating to his need to confine his medical practice to hospital or other clinical settings and not to undertake any out-of-hours work, not to undertake clinical consultations by e.mail and not to provide his mobile telephone number or e.mail address to patients.
18. Dr El Deeb's case was considered again by a panel on 24 March 2009. By this time there were at least two changes in the information the panel had. First of all, it had two reports to which I will refer in a moment. Secondly, it had at least one additional witness statement from Miss JN, whose case had led to the original inquiry by the GMC.
19. The first report was from a professor of surgery in Cairo, Professor Ahmed El-Sharkawy. Dr El Deeb had obtained the report. Professor El-Sharkawy said that he had examined the hospital notes, as well as Ms JN's statements, and there was no justification whatsoever to raise any real issues about Dr El Deeb's fitness to practise. Professor El-Sharkawy said Mr Scott's report was not of the standard which he would expect. It was also inconsistent with other experts' reports and with the hospital notes. The post-operative photographs which Professor El-Sharkawy had examined showed that there was a positive outcome in the case of Ms JN. Professor Scott had concealed certain parts of the medical history which were favourable to Dr El Deeb, such as, for example, Ms JN's depression. In all, Mr Scott's report was sub-optimal and, on that basis, should not be used by the GMC to further any proceedings against Dr El Deeb.
20. The other report had been obtained by the GMC in relation to the fitness to practise proceedings. That report, by Mr Percival, had concluded that many of the matters which Mr Scott raised were not matters upon which the GMC should place great weight.
21. The panel decided that, notwithstanding the submissions by the GMC that the conditions should be maintained, the interim order should be revoked. Dr El Deeb posed no risk to patients. The panel referred to the inconsistencies which Dr El Deeb had identified in the statements by Ms JN on different occasions. Moreover,

".... you also made submissions to cast doubt on the accuracy and veracity of the information provided by the Trust employing you as a locum consultant plastic surgeon at the time."

22. The panel went on to say that they had -

" ..... borne in mind that it is not its function to make findings of fact, to decide on the veracity of allegations, nor to resolve conflicts in information."

However, they had given such weight as they considered appropriate to the information available. In particular they noted that no other concerns had been raised about Dr El Deeb's clinical practice:

"Having considered all the information before it, including that the allegations only relate to incidents involving one patient over a short period of time, the panel is not satisfied that there may be impairment of fitness to practise which poses a real risk to patients or may adversely affect the public interest or your own interests and Therefore the panel has determined that it is no longer necessary for the protection of members of the public and public, in the interest or in your own interests for registration to be subject to an order in accordance with Section 41A of the Medical Act 1983, as amended. The previous order is therefore revoked."

23. The Fitness to Practise Panel considering Dr El Deeb's case met over a week beginning 22 June 2009. At the end of the week the matter was adjourned part-heard. The hearing is to be resumed later this year. Prior to the hearing Dr El Deeb applied under Rule 28 for the cancellation of the case against him. That was refused. The Fitness to Practise Panel has made a number of interlocutory determinations in relation to the case. On 23 June it stated:

"The panel deliberated on the lateness of the service of this document and two further documents this morning, whilst the panel was in camera deliberating this application. It considers that this is inappropriate and extremely poor practice on behalf of the GMC and is deeply concerned that you did not mention these further documents on the first day of the hearing, even when the issue of patient A's evidence was raised."

24. The present proceedings were lodged in August 2008. The claim form sets out the basis on which Dr El Deeb wishes to appeal, in particular against the decisions of the Interim Orders Panel of February 2008 and of July 2008, the decision to investigate him and the decision not to discipline Mr Scott because of the nature of his report. In addition, the appeal is also against the refusal of the GMC to disclose details of certain communications which it had had in relation to third parties.
25. The order Dr El Deeb seeks from this court is a finding that the orders of the Interim Orders Panel of February and July 2008 be quashed. In addition, Dr El Deeb seeks that there be a prosecution and appropriate actions ordered against certain persons who have made allegations, that Dr Scott's letter be removed from the GMC's files and that appropriate compensation for the damage to his career be awarded. He also raises issues of victimisation, breaches of the Human Rights Act 1998, breaches of the Data Protection Act 1998 and the abuse of power.

The Law

26. The powers of the Interim Orders Panel are set out in Section 41A of the Medical Act 1983. In particular section 41A (1) reads as follows:

"(1) Where an Interim Orders Panel or a Fitness to Practise Panel are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the panel may make an order —

(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an 'interim suspension order'); or

(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Panel think fit to impose (an 'order for interim conditional registration').

27. In addition, Section 41A (4) provides that no order can be made by a panel unless the person has been afforded an opportunity of appearing before it and being heard on the question of whether such an order should be made. Section 41A (2) provides that once an order has been made it shall be reviewed within the period of six months beginning on the date on which it was made, and thereafter for so long as it continues on a six-monthly basis or if new evidence becomes available.
28. The powers of this court are set out in Section 41A (10) as follows:

"(10) Where an order has effect under any provision of this section, the relevant court may —

(a) in the case of an interim suspension order, terminate the suspension;

(b) in the case of an order for interim conditional registration, revoke or vary any condition imposed by the order;

(c) in either case, substitute for the period specified in the order (or in the order extending it) some other period which could have been specified in the order when it was made (or in the order extending it),

and the decision of the relevant court under any application under this subsection shall be final."

29. It will be evident that the powers conferred on this court by that sub-section are limited. In General Medical Council v Hiew [2007] EWCA Civ 369, Arden LJ, giving the judgment of the court, said that the power to make the orders set out in Section 41A (10) -

"30 ..... represent the limit of the court's express powers in relation to interim measures under Section 41A. It is to be noted that Parliament has not given the court power to determine in the first instance whether an interim suspension order or conditional order should be made."

In addition, Arden LJ said at paragraph 33 -

" ..... If [a] medical practitioner contends that the allegations are unfounded, the medical practitioner should challenge by judicial review the original order for suspension or the failure to review it and make some other decision in accordance with section 41A (2). On such an application, the decision of the IOP ..... will then be examined on well-established judicial review grounds."

In Vaidya v General Medical Council [2008] EWHC 3167, Plender J, assumed (at paragraph 10) that since one set of proceedings before the Interim Orders Panel had been suspended by a subsequent review by a different panel, he had no need to consider the former proceedings. It seems to me that the upshot of the limited powers conferred on this court by section 41A (10) is that, where there are no extant orders from an Interim Orders Panel this court has no jurisdiction to proceed.

30. The General Medical Council Fitness to Practise Rules Order of Council 2004, SI 2004 No 2608 contains a number of rules in relation to any hearing before an Interim Orders Panel. Rule 26 provides that the registrar shall serve the practitioner with a notice of hearing and a copy of any written evidence which is relevant to the question of whether or not an interim order should be made. Rule 31 provides that where the practitioner is not present or represented the panel may nonetheless proceed to consider and determine the allegation if satisfied that all reasonable efforts have been made to serve the practitioner with notice of the hearing in accordance with the rules. That refers to the provisions for service set out in Rule 40, which refers back to Schedule 4 of the Medical Act 1983. Under paragraph 8 of Schedule 4, any notice may be served by its delivery, by leaving it at the person's proper address or by sending it by registered or recorded postal service. Rule 34 of the Rules provides that an Interim Orders Panel -

" ..... may admit any evidence they consider fair and relevant to the case before them, whether or not such evidence would be admissible in a court of law."

31. In Hiew, Arden LJ elaborated the function of an Interim Orders Panel when considering what order should be made. At paragraph 33 she said:

"The court is not expressing any view on the merits of the case against the medical practitioner ..... Its function ..... is to ascertain whether the allegations made against the medical practitioner, rather than their truth or falsity, justify the prolongation of the suspension. In general, it need not look beyond the allegations."

In Madan v General Medical Council [2001] EWHC 322 Admin, Richards J (as he then was) considered the power of the court. At paragraph 5 he said:

"5 It seems to me that the approach laid down in that passage, which is plainly applicable to a statutory application of the present kind, whether or not it is under precisely the same powers as were relevant in Reza, is not materially different from the approach of the court on an application for judicial review. There, too, essential questions are whether irrelevant considerations have been taken into account or there has been a failure to take relevant considerations into account, and whether the decision ultimately reached is one that was reasonably open to the decision maker -- a test close to, if not identical to, that of 'manifestly wrong'."

Richards J went on to say that the submissions before the court on that occasion went to the merits and it was not possible for the court to substitute its judgment of the merits. The court had a limited function given its statutory role.

32. Finally in this regard mention should be made of the guidance provided by the GMC itself: "Imposing Interim Orders Guidance for the Interim Orders Panel and Fitness to Practise Panel", April 2008. At paragraph 19 of that guidance it is stated that the panel, when imposing an interim order, should consider the seriousness of risk to a member of the public if the doctor continues to have unrestricted registration;"19. In reaching a decision whether to impose an interim order an IOP should consider the following issues:

A.

The seriousness of risk to members of the public if the doctor continues to hold unrestricted regsitration. In assessing this risk the IOP should consider the seriousness of the allegations, the weight of the information, including information about the likelihood of a further incident or incidents occuring during the relevant period.

b. Whether public confidence in the medical profession is likely to be seriously damaged if the doctor continues to hold inrestricted registration during the relevant period.

c. Whether it is in the doctor's interests to hold unrestricted registration. For example, the doctor may clearly lack insight and need to be protected from him or herself.

Dr El Deeb's Case

33. Before me today Dr El Deeb has raised a number of specific criticisms of the GMC, in particular the decisions that its Interim Orders Panel has made. He has provided voluminous documentation, including a skeleton argument running to some 92 pages, which includes not only detailed argument but also a chronology and what he calls "some points of argument and comments...". The specific points which he developed before me were, first, what he said were the defects in the hearing in February 2008, in particular the failure to serve the bundle on him prior to the hearing. There was also the fact that the patient Ms JN had not given her signed consent in relation to the release of any information. He pointed to the fact that on the evening before the hearing, notwithstanding that he had not received the bundle by post, the GMC attempted to e.mail certain documents to him. They were not accessible to him in that format. It was on that basis that he did not attend the hearing because he was in no position to prepare his case. That - in his submission - was a breach of the rules of natural justice.
34. Secondly, Dr El Deeb raised concerns about Dr Scott's report. In that regard he pointed out that Ms JN had in fact thanked him for the surgery which he had undertaken in relation to her breast. He took me to photocopies of a "thank you" card from Ms JN and also a record that he had received a Parker pen. In relation to Mr Scott's report, Dr El Deeb was critical of the fact that it had been regarded by the GMC as an expert's report. In fact not only had it breached the guidelines for the preparation of such reports but it had been prepared for civil proceedings which Ms JN was taking. He pointed to the report of Professor El-Sharwaky and to his own expertise over 25 years as a plastic surgeon. Notwithstanding the criticisms Mr Scott had made of his work, the outcome with Ms JN was comparable to that which one would see in the textbooks.
35. Dr El Deeb then turned to the February hearing itself. He pointed out that the six specific criticisms which had been made of him could all be refuted. As a footnote to that he took me to the decision of the Interim Orders Panel on 23 March 2009, which had of course revoked the conditions which the panel had imposed in July 2008. That, in his submission, demonstrated that the decision in February 2008 was without foundation because nothing had changed in the meanwhile.
36. In relation to the first point which had persuaded the panel - namely, that the patient Ms JN had received antibiotics - he pointed out the inconsistencies in her account and that she had visited the hospital on particular occasions when that was not evident from the hospital records.
37. As to his giving Ms JN his mobile telephone number, he explained the background. He said that on one occasion one of his patients had been put on "nil by mouth" when it was inappropriate, and although he had been on the other side of the hospital he had not been contacted. That and other incidents of his treatment by members of the hospital had led him to give his mobile telephone number to his patients so that they could contact him and not be subject to such treatment in the future.
38. In relation to the sending of the e.mail, Dr El Deeb complained that he lived in Lancaster, well away from the hospital, and that when Ms JN had contacted him via a voice mail message on his mobile he had attempted to get her to describe the wound on her breast. That was not satisfactory. She had then suggested that she could send a photograph by her mobile, but Dr El Deeb was not au fait with the technology. So at the end of the day he had given her his e.mail address. There was nothing in GMC guidance against doing that, and it was in accordance with his general duty of care as regards his patients.
39. As far as the allegation about debriding was concerned, he asked rhetorically: why should he do that? In fact Ms JN had not received adequate treatment when, for example, she had been to the A & E.
40. Turning to the Tesco consultation, Dr El Deeb explained that he had happened to be in Dundee that weekend with his family. He had received a message at 9.30 in the evening from Ms JN, asking whether he could access his e.mails that weekend. He had explained to her that he was not on duty. His understanding was that Ms JN's mother-in-law was encouraging her to contact him because there was an infection. There was nothing, in his submission, in GMC guidance against personal, informal communication. He was not on duty that weekend. He was on holiday. In any event, in his submission, GMC guidance is that doctors should always put the patient first and should support patients in caring for themselves. In his submission, that consultation had nothing to do with his duty at the hospital. The explanation for carrying out the consultation at Tesco was because he did not know the geography of Dundee well and that seemed to be the most convenient place to meet Ms JN.
41. Finally, there was the criticism that he had told Ms JN not to mention the matter to the hospital. Dr El Deeb said that this criticism had been raised in the original criticisms by Tayside NHS. In any event, he reiterated that he had been on holiday at the time.
42. The next matter Dr El Deeb raised was what he described as the inaccuracies - to put it no higher - in the documents. The first inaccuracy was contained in the case examiner's report. In addition, there were the inaccuracies in Ms JN's witness statements. There had been three witness statements from her altogether and there were variations between them. So, for example, in one of her statements she had said that he had suggested that she trim the skin by scissors and tweezers. That would be unthinkable in his practice, given that, if needs be, he would have had his private instruments. He pointed out there was the statement by Ms JN that he had suggested that she remove the loose stitches. Again that was completely wrong. He would not have told her to do that because that would have led to the complete collapse of the reconstructed breast. In any event, there was no way that she could have cut those stitches. That was illustrative, in his submissions, of the nature of the documents which had been marshalled against him.
43. Turning to the July hearing, Dr El Deeb pointed to the interruptions by the chairman which had not allowed him to address the basis of the allegations which had been made. He had wanted to go back to first base but had been prevented from doing that. He was also critical of the conditions which were imposed by the panel, some of which were incompatible with good practice. He also raised the issue that if the panel had been prepared to consider inaccuracies in the documents he would have been able to expose them.
44. Finally, Dr El Deeb raised the implications of the GMC's actions in relation to his career. He highlighted the publication of the suspension and of the conditions on the website. There was also the media publicity which had been attached to his case. He submitted that the publicity was, in part, defamatory and also in breach of confidentiality. The upshot of what the GMC had done was to destroy this practice and a reputation which he had built up over a period of quarter of a century. He was unable to get professional references from the Tayside NHS. In all, in both his written submissions and in his oral presentation, Dr El Deeb submitted that the GMC had abused its powers. They had not complied with the Medical Act 1983 or the Rules. They had acted by concealing documents and by accepting incorrect documents, demonstrably so on occasions.

Conclusion

45. In my view the basic difficulty with Dr El Deeb's case in this court is that I have no jurisdiction, given the words of section 41A (10). There is no suspension of Dr El Deeb from practice and no extant conditions imposed on him which can ground the jurisdiction of this court. It may have been that, if he had acted earlier, Dr El Deeb could have challenged the basis of the allegations against him by judicial review. That is clear in the passages quoted from Arlen LJ's judgment in Hiew. But there is no judicial review.
46. Even if I were able to review the decisions of the panel on those three dates - 8 February 2008, 24 July 2008 and 24 March 2009 - it would not be possible for me to interfere given the leagl authorities.
47. In relation to the first hearing on 8 February 2008, it is clear that the panel gave close consideration to the rules about service of the notice of hearing and that it is not necessary for the person to be served with the bundle. Whatever might be said about the desirability of the doctor having the bundle the fact is that Dr El Deeb did know about the hearing. That is evident from his e.mail of 16 January where it appeared that he had received both the covering letter and the notice of hearing. In that e.mail he did not ask for an adjournment. On that basis the panel satisfied itself that he had been served with the notice of hearing. The panel decided it could proceed, as it was entitled to in his absence.
48. As far as the decision of the February pane,l, to suspend Dr El Deeb, it is evident from the authorities that the court is simply concerned with whether there were substantial allegations before the panel. It is not concerned to make determinations of fact or to decide on the veracity of any complaint made. The panel had to consider whether the allegations which were contained in Mr Scott's report and in Ms JN's witness statement raised, on the face of them, a case which went to Dr El Deeb's fitness to practise. On that occasion the panel had a report from a consultant plastic surgeon, ie Mr Scott, who had examined Ms JN. Dr Scott's report contained concerns which were apparently credible. Ms JN had signed a witness statement regarding the treatment of her by Dr El Deeb. Whatever Ms JN may have said previously, and whatever she might say subsequently in amendments to her witness statement, the statement before this panel disclosed matters of concern such as the receipt of the photograph of her breast sent by e.mail and the consultation at the Tesco supermarket. There was also the fact that Dr El Deeb's employment with the hospital had been terminated. Given that this was what was before the panel there is no way that I could regard the decision of 8 February as in any way wrong as a matter of law if I were required to consider it.
49. Nor would it be possible for me to regard The decision of the panel in July 2008 as legally flawed. Admittedly Dr El Deeb wanted to raise issues before it and was prevented from doing so. But the functions of the panel are quite clearly set out in the rules. It is not concerned with deciding on the credibility or otherwise of the matters raised.
50. For completeness I shall add that Dr El Deeb raised issues about the motivation behind the behaviour of staff members at the hospital in Tayside. He also makes allegations of bad faith against the GMC and its officials. Those of course are of no relevance to the hearing before me today. There is no basis for his submission that the GMC excluded or ignored important evidence. The Interim Orders Panel had evidence before them when they reached their decision and Dr El Deeb was able - certainly in the July hearing - to ventilate matters in person. He also raised matters at the February hearing by written submission.
51. Insofar as Dr El Deeb raised others matters in this appeal, it goes without saying that I have no power to direct that anyone be proceeded against. Nor have I jurisdiction to remove Mr Scott's letter from the files of the GMC. There is also no basis to award compensation.
52. Dr El Deeb has held a long career in medicine. He has received "thank you" letters from patients and commendations from colleagues. There is no doubt that his career has suffered as a result of these proceedings brought by the GMC. The only comfort I can give him is that he will be able to ventilate these matters before the Fitness to Practise Panel when the hearing is resumed later this year. But there is nothing I can do in relation to the matters raised in this appeal. In my view the appeal must be dismissed.
53. MISS WINDLE: There are two matters of correction in your judgment. At one stage you referred to this being a claim for judicial review. It was just after you dealt with the interlocutory order of the Fitness to Practise Panel. I am sure you did not mean judicial review.
54. The other matter was that you referred to the IOP occurring in June last year; it was July last year. That varied occasionally.
55. The other matter is costs. It is my submission that the GMC should have its costs. Dr El Deeb was warned that the GMC would seek its costs on a number of occasions. The GMC has won. The appeal has proceeded on a false basis the whole way through, a false understanding of the powers of this court. The GMC has tried very hard to correct that misunderstanding, and did supply a skeleton argument setting it out clearly back in October 2008. Dr El Deeb proceeded nonetheless.
56. MR JUSTICE CRANSTON: Do you have your schedule?
57. MISS WINDLE: Yes.
58. MR JUSTICE CRANSTON: Has Dr El Deeb seen the schedule?
59. THE CLAIMANT: Your Honour, this in incorrect. Basically the GMC mentioned costs in case the case goes for three days rather than one day (this is number 1). First, the letter is here - I can go to it - in case it goes it goes for three days. Number 2: actually it was on the basis of information provided by the GMC that the appeal - - the decision can be appealed here in this way. So accordingly this decision was appealed here.
60. MR JUSTICE CRANSTON: You have seen the amendments they have made. Have you looked at the schedule? They have taken into account the fact that it is only one day. Have you the amended schedule? Look at the schedule.
61. THE CLAIMANT: The schedule - this one?
62. MR JUSTICE CRANSTON: Yes. Have a look at that. Have you seen that?
63. THE CLAIMANT: No. I never saw this. I never saw this.
64. MR JUSTICE CRANSTON: I am saying that they have taken into account the first fact you mentioned, that it is a one-day, not a three-day, hearing.
65. THE CLAIMANT: Your Honour, it was said before I give the letter by Mrs Merton now - - - - -
66. MR JUSTICE CRANSTON: Yes, that is a different point.
67. THE CLAIMANT: - - - - - that it was no issue of costs at all because the GMC was the one who took - - if the court does not have the jurisdiction or there is not enough power or the powers of the court are limited it is not my mistake. There are errors here and there are actually false reports, false documents and there are bad faith evidence findings.
68. MR JUSTICE CRANSTON: Were there any letters?
69. THE CLAIMANT: Yes.
70. MR JUSTICE CRANSTON: Not about the false documents - about the matter coming here?
71. THE CLAIMANT: Yes, the costs. Mrs Merton wrote a letter - I will find it, letter from Mrs Merton - and she was talking about the costs in the case, the case takes three days.
72. MR JUSTICE CRANSTON: Is that in the bundle?
73. THE CLAIMANT: Yes. It is in the bundle.
74. MR JUSTICE CRANSTON: Where is that?
75. THE CLAIMANT: I reply to this letter.
76. MR JUSTICE CRANSTON: Where is it?
77. THE CLAIMANT: I will get the letter from - - (Pause) I am going to get the letter; it is here in the bundle.
78. MISS WINDLE: I have the letters that were sent. The dates I am looking at are 18 February 2009, 23 February 2009 and 14 April 2009. I am not sure if they are in the bundle. I have copies I can hand up to your Lordship.
79. MR JUSTICE CRANSTON: What you are saying is that there was no letter saying - - - - -
80. THE CLAIMANT: I give the letter. The letter is here; the letter is here. It is stating only - - - - -
81. MR JUSTICE CRANSTON: Take your time and find it. If you were told that there was going to be no application for courts that is quite significant. (Pause)
82. THE CLAIMANT: I need to go to the letters labeled "Mrs Merton".
83. MISS WINDLE: I have one copy from my bundle and one from my solicitor's bundle.
84. MR JUSTICE CRANSTON: Show him the letter; just see if that is the one he is talking about.
85. MISS WINDLE: Are these the letters?
86. MR JUSTICE CRANSTON: Are they the letters?
87. THE CLAIMANT: I am looking for the letter about the - - it is not this one. (Pause) The letter here in the bundle is in reply to the three-day - a letter dated 23 February 2009 - in reply to the request for three days. This was the reply to my request for three days, but since that the reply to my request for three days - - if the GMC is successful they will claim the costs. That was the reply to the request for three days.
88. MR JUSTICE CRANSTON: Which is that one?
89. THE CLAIMANT: That was the 23 February, the letter was 23

February. When they requested one day they never requested any actual costs. The point is if - - - - -

90. MR JUSTICE CRANSTON: Does not the last paragraph say that?
91. THE CLAIMANT: This was in reply to my request for the three - - at that time this was the reply to my request for three days hearing.
92. MR JUSTICE CRANSTON: It says:

"If you continue to pursue this matter and we attend a hearing in due course, please be advised that if the General Medical Council is successful we will be seeking our full costs against you for all the work that has been undertaken dependent on proceedings which now are ..... "

93. THE CLAIMANT: So this matter was the three-day hearing which this was the reply to that letter.
94. MR JUSTICE CRANSTON: In the previous paragraph they say that the case should only take one hour; it was a bit optimistic.
95. THE CLAIMANT: In the skeleton argument it is saying up to one day, in the skeleton argument. The skeleton argument is saying at one day. Basically if they provided the correct information the Interim Order Panel of 8 February should have been appealed by judicial review.
96. MR JUSTICE CRANSTON: Do you have anything about that?
97. THE CLAIMANT: When they provided the notification of the determination attached to this is the information to appeal, is to appeal this way in the Administrative Court - this way. If we look at the - - otherwise I would seek the costs because I have been misled to come here to be told that it is not in the jurisdiction and the powers of the court.
98. MR JUSTICE CRANSTON: Yes, but they tell you that in that letter of 18 February, do they not? They say there - that letter of 23 February - they say the matter is academic.
99. THE CLAIMANT: On 23 February this was when we were addressing the duration of the case. The information about appealing the decisions that they made was provided by the GMC, the decision, to appeal that decision. The information was proposed by the GMC. So if they provided this information and I come here and they say that it should be by judicial review, then I am misled and I would seek my costs from the GMC. It is not the other way round.
100. MR JUSTICE CRANSTON: Subject to you producing some - - I have to say it would have been better if you had got legal advice. Put that to one side. I can see no reason why they should not have their costs. They have succeeded. They gave no undertaking that they would not seek their costs. They warned you that they would seek their costs. So it seems to me it is a matter of arguing about the figures. They have reduced the bill from 12,000 down to 6,900. Have a look at that and tell me if there is any aspect that you want to challenge.
101. THE CLAIMANT: I am not liable with full respect to the court. I am not liable to these costs because from the beginning - we are talking about February here - it was the time of addressing the duration of the hearing and I was told if you continue to apply for the three-day we will get the costs, not for the one-day hearing and no one-day hearing your Honour - - - - -
102. MR JUSTICE CRANSTON: Is there anything specific you want to raise on the bill?
103. THE CLAIMANT: I did not find anything justifiable at all. There is no one-day hearing for this figure.
104. MR JUSTICE CRANSTON: If you look, they have reduced it to one day.
105. THE CLAIMANT: Pardon?
106. MR JUSTICE CRANSTON: If you look at "attendance at hearing", you will see that they have struck out 15 and they have put five hours. It seems to be a bit longer than that. They claim five hours, not 15, and they have reduced the amount of travel and waiting. Counsel's fees have come down as well. Unless you can - - - - -
107. THE CLAIMANT: The appeal against the GMC decisions, this is the only way to appeal against the GMC decisions. The GMC - - as a doctor will appeal and they are providing the information this is how to appeal. There is no precision (?) of appeal inside the GMC. This is how to appeal.
108. MR JUSTICE CRANSTON: Is there some standard form?
109. MISS WINDLE: If you look at the decision of the Fitness to Practise Panel decision, take up bundle 2 at binder A, page 296, you will have the last page of the decision of the IOP. That contains the standard wording.
110. MR JUSTICE CRANSTON: You can seek legal advice or not.
111. MISS WINDLE: It correctly sets out that the court can revoke or vary an order made. It correctly says that you should contact the court and seek legal advice without delay. It is entirely correct. It does not mention judicial review because in ordinary circumstances there is no need to apply for judicial review. In any event, your Lordship's determination is such that even had a judicial review claim been made, it would have been bound to failure. What is more, not only were the letters sent on 18 and 23 February - the one complained about - but also there is one on 14 April which makes the same costs warning.
112. MR JUSTICE CRANSTON: The basis of review is exactly the same in relation to an appeal and in relation to judicial review especially in terms of the authority of Mr Justice Richards (as he then was).
113. MISS WINDLE: Yes.
114. MR JUSTICE CRANSTON: It is simply that judicial review is different. You can get different orders.
115. MISS WINDLE: Quite.
116. MR JUSTICE CRANSTON: The grounds are exactly the same. As you quite rightly say, it does not really make any difference in terms of the substance of the decision.
117. MISS WINDLE: That is correct. It was bound to fail whichever route it was brought under. The costs warnings were made not only in the letter that Dr El Deeb seized upon but in the other two letters as well.
118. THE CLAIMANT: Your Honour, any determination that was received - for example, the determination of July - - - - -
119. MR JUSTICE CRANSTON: Yes. You have to pay the costs. Is there anything in particular you want to raise about the figures? They have reduced the figures.
120. THE CLAIMANT: Regarding the - - as I am saying, they advised to appeal this way and it is attached with the determination. They did not, for example - - - - -
121. MR JUSTICE CRANSTON: I have said that is a bad point. I have ruled against you on that. That is a bad point. What about the exact figures?
122. THE CLAIMANT: The exact figures: the maximum for the day of attendance is £2,000, £2,000 the maximum for one day. The figures we are providing for one day is actually unjustifiable. The second thing, I am not working or earning because of the conduct of the GMC and the other parties. If there is nowhere to appeal the unjustice imposed on me so I understand they provided me with how to appeal. They provided the information. I appealed with the information they provided. So if they come and ask for such unjustifiable figures I find this utterly and completely unjustifiable.
123. MR JUSTICE CRANSTON: We must draw it to a close. I am going to award the GMC costs in this case to the extent - - - - -
124. MISS WINDLE: Can I say just in relation to the costs, they are of course the entire costs in issue. Your Lordship has recognised that Dr El Deeb's skeleton argument alone ran to 92 pages. They are obviously wholly permissible and proportionate.
125. MR JUSTICE CRANSTON: I am going to rule that you can have the costs of £6,970.60 (?).
126. MISS WINDLE: I am grateful.
127. THE CLAIMANT: I did not hear that.
128. MR JUSTICE CRANSTON: They are going to get costs. It is up to them how they enforce the order. They have to have the costs.