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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alhy, R (on the application of) v General Medical Council [2011] EWHC 2277 (Admin) (08 July 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2277.html Cite as: [2011] EWHC 2277 (Admin) |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
1 Oxford Row Leeds LS1 3BG |
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B e f o r e :
(Sitting at as a High Court Judge)
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THE QUEEN ON THE APPLICATION OF STEPHANE ALHY | Claimant | |
v | ||
GENERAL MEDICAL COUNCIL | Defendant |
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(Official Shorthand Writers to the Court)
Mr Hare (instructed by General Medical Council) appeared on behalf of the Defendant
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Crown Copyright ©
Introduction
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned."
The quote later points to the fact that:
"The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price."
The Panel is concerned therefore with the reputation or standing of the professional as well as issues of the findings of fact but it is concerned with those matters rather than punishment of the doctor.
"These strands in the learning then, as it seems to me, constitute the essential approach to be applied by the High Court on a section 40 appeal. The approach they commend does not emasculate the High Court's role in section 40 appeals: the High Court will correct material errors of fact and of course of law and it will exercise a judgment, though distinctly and firmly a secondary judgment, as to the application of the principles to the facts of the case."
"When giving its reasons the Panel failed to explain to the appellant so that he and others interested in the outcome could clearly understand why it had decided to impose a sanction that was more onerous than that imposed in France by the French courts and the ODM, the latter body having taken no action when the Panel was under a duty to give such reasons."
The ODM is the equivalent to General Medical Council in France.
"The guarantee conferred by this Directive on persons having acquired their professional qualifications in a Member State, to have access to the same profession and pursue it in another Member State, with the same rights as nationals is without prejudice to compliance by the migrant professional, with any non discriminatory conditions of pursuit which might be laid down by the latter Member State provided that these are objectively justified and proportionate."
Article 4 of the Directive headed "Effects of Recognition" provides as follows:
"The recognition of professional qualifications by the host Member State allows the beneficiary to gain access in that Member State to the same profession as that for which he was qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals."
Mr Pascal accepts that the effect of that recital and, in particular, of Article 4 is that once Dr Alhy was registered in England and Wales he was bound by the rules of the General Medical Council, something which is perfectly proper and recognised by those Articles.
"The service provider should be subject to the application of disciplinary rules of the host Member State having a direct and specific link with the professional qualifications, such as the definition of the profession, the scope of activities covered by a profession or reserved to it, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety."
"The general system for recognition, however, does not prevent a Member State from making any person pursuing a profession on its territory subject to specific requirements due to the application of professional rules justified by the general public interest. Rules of this kind relate, for example, to organisation of the profession, professional standards, including those concerning ethics, and supervision and liability."
It is plain from those recitals that the migrant is subject to discipline in the host State when registered there. There is no dispute, therefore, that Dr Alhy fell under the discipline of the General Medical Council once registered here as a doctor.
"The competent authorities of the host Member State and the home Member State shall work in close collaboration and shall provide mutual assistance in order to facilitate application of this Directive. They shall ensure the confidentiality of the information which they exchange."
It plainly imposes an obligation to exchange information to facilitate registration and other matters arising in relation to the migrant professional between both the host State and the home State.
"The competent authorities of the host and home Member States shall exchange information regarding disciplinary action or criminal sanctions taken or any other serious specific circumstances which are likely to have consequences for the pursuit of activities under this Directive."
The paragraph then goes on to provide that that obligation is subject to data protection legislation and I do not need to read that.
"The home Member State shall examine the veracity of the circumstances and its authorities shall decide on the nature and scope of the investigations which need to be carried out and shall inform the host Member State of the conclusions which it draws from the information available to it."
"The Court of Appeal in Rascid made it plain that the functions of the Panel are quite different from those of the court imposing retributive punishment."
The judgment goes on to say that the General Medical Council should be able to take action in relation to the registration of a doctor in the interests of the public, namely the particular need to protect the individual patient and the collective need to maintain the confidence of the public in their doctors. A number of judgments have made it clear that "the public interest" includes the protection of patients, the maintenance of the public confidence in the profession, declaring and upholding proper standards of conduct and behaviour, issues which, certainly in this jurisdiction, go further than the question of punishment for offences in the criminal courts.
1. The appeal is dismissed.
2. The application for permission to appeal is refused; and 3. The appellant to pay the respondent's costs assessed in the sum of £6,975 inclusive of VAT, interest and disbursement. I make it clear that is an all inclusive figure. Very well. Thank you both very much.