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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Campbell, R (on the application of) v Birkin [2004] EWHC 1301 (Admin) (28 May 2004) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2004/1301.html Cite as: [2004] EWHC 1301 (Admin) |
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QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF JENNIFER CAMPBELL |
Claimant |
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- and - |
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THE GENERAL MEDICAL COUNCIL |
Defendant |
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NIGEL BIRKIN |
Interested Party |
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Smith Bernal Wordwav Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Gerard Clarke (instructed by Anthony Omo Solicitor to the General Medical Council) for the Defendant
Andrew Kennedy (instructed by Radcliffes Le Brasseur) for the Interested Party
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Crown Copyright ©
Mr Justice Silber:
I Introduction
II The Challenge
(i) failed to assess and consider properly (a) the seriousness of the matters found proved against Dr. Birkin and (b) the close similarity between the matters found proved in respect of the treatment of Amy and of Michael in order to determine if the serious professional misconduct charge had been substantiated ("the Failure to Assess Point");
(ii) was perverse in describing that the protracted sub-standard treatment of Michael and Amy as "isolated incidents" ("The Isolated Incidents Point") and
(iii) was perverse in attaching importance to the "medical isolation" of Dr. Birkin's practice on the Isle of Man ("The Medical Isolation Point").
III The Law
"(1) where a fully registered person ..
(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct .. the Committee may, if they think fit impose certain penalties".
(a) "Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances" (per Lord Clyde in Roylance v. General Medical Council [1999] Lloyd's Rep. Med. 139 at 149);
(b) It is necessary to bear in mind that "the [word] misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious" (ibid);
(c) "It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence" (per Lord Cooke of Thorndon in Preiss v. General Dental Council [2001] 1 WLR 1926, 1936C [28]).
(d) even a single incident can amount to serious professional misconduct (McCoan v. General Medical Council [1964] 3 All ER 143).
IV The Decision and Reasoning of the PCC
(i) between 13 March 1999 and 12 April 1999, Dr. Birkin failed to keep proper growth charts which would have shown a weight gain of only 105 grams in two weeks, which was slower than the expected gain of 300 grams;
(ii) he failed to carry out a full examination of Michael and make a note of his head circumference measurement when he was seen by him on 12 April 1999;
(iii) he omitted to arrange regular weekly recordings of Michael's head circumference and to carry out weekly ultrasound scans between 6 April 1999 and 29 April 1999;
(iv) he failed to admit Michael for medical assessment and treatment in hospital after he had been seen by Dr. Birkin in his clinic on 26 April 1999 on which occasion it was noted that there was clear evidence of a rapidly increasing head circumference;
(v) he was responsible for inadequate and unprofessional supervision of Michael on and after 4 May 1999 because he then failed to arrange for an immediate surgical referral. Instead, Dr. Birkin wrote to Mr. P. L. May, consultant paediatric neurosurgeon at Alder Hey Children's Hospital asking that Mr. May should see Michael "in the next week or ten days" and that
(vi) he was responsible for substandard treatment which was not in the best interests of Michael and which was likely to compromise Michael's safety after the admitting doctor at Noble's Hospital had made a diagnosis of marked hydrocephalus. Michael had only been readmitted to Noble's Hospital after his parents had telephoned Liverpool Women's Hospital and sought assistance directly.
V The Purpose of the PCC's Disciplinary Proceedings
"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 part of the price".
"Because orders made by the tribunal are not primarily punitive, considerations which would ordinarily weigh in mitigation of punishment have less effect on the exercise of this jurisdiction than on the ordinary run of sentences imposed in criminal cases. It often happens that solicitors appearing before the tribunal can adduce a wealth of glowing tributes from his professional brethren. He can often show that for him and his family the consequences of striking off or suspension would be little short of tragic. Often he will say, convincingly, that he has learnt his lesson and will not offend again. On applying for restoration after striking off, all these points made be made, and the former solicitor may also be able to point to real efforts made to re-establish himself and redeem his reputation. All these matters are relevant and should be considered. But none of them touches the essential issue, which is the need to maintain among members of the public a well-founded confidence that any solicitor whom they instruct will be a person of unquestionable integrity, probity and trustworthiness".
VI The Failure to Assess Point
"Nowhere in the concluding paragraphs of the Committee's decision is there any indication that the seriousness of Dr. Birkin's failure in relation to Michael and Amy was weighed in the balance when deciding whether those failures amounted to serious professional misconduct".
"… consider as a separate issue whether this amounted to serious professional misconduct" (Silver v. General Medical Council [2003] UKPC 33 [20] per Sir Philip Otton with my italicisation added).
"Having reached these findings on the facts, the Committee then considered whether the facts found admitted and the facts proved would be insufficient to support a finding of serious professional misconduct. The Committee concluded that they would not be insufficient".
"The Committee therefore finds you guilty of serious professional misconduct. However, we note that you work in a deprived area where it is difficult to get staff and medical assistance. You have a large list of patients who you have served for 40 years as a sole practitioner. The Committee are aware this is the only complaint recorded against you having read carefully the testimonials submitted on your behalf" [16].
"It is axiomatic that after the findings of fact all the relevant circumstances must be considered before a finding of serious misconduct can be arrived at. The matters set out in the paragraph immediately following the announcement of serious professional misconduct [which are summarised in paragraph 22 above] were, in their Lordships' view relevant to, and should have been taken into consideration when arriving at, the decision of serious professional misconduct and not merely as a consideration as to the appropriate sanction and conditions the Committee were minded to impose" [17].
1. "The Committee have had to address the question of whether your actions amounted to serious professional misconduct. In their deliberations the Committee have listened carefully to the submissions made on your behalf in this respect and have taken careful account of the advice of their Legal Assessor on the meaning of serious professional misconduct.
2. The Committee were referred to the case of Silver v. The General Medical Council (Privy Council Appeal No. 66 of 2002) in which it was stated that all relevant matters must be considered before a finding of serious professional misconduct is reached and not merely in mitigation as to the sanction imposed.
3. The Committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation. You also ran the neonatal unit single-handedly for 15 years. The Committee consider that the two cases about which it has heard evidence appear to be isolated incidents against a background of otherwise unblemished medical practice of over 30 years.
4. They have also considered the outstanding testimonials that have been submitted on your behalf, both in person and in writing, by your patients and colleagues, all of whom state that you are a highly committed, caring and professional doctor who cares deeply about your patients.
5. In all these circumstance, the Committee have concluded that you are not guilty of serious professional misconduct. That concludes the case".
"It is well established that a court when considering reasons given by a decision maker, must be careful not to construe them "in a pedantic and nit-picking spirit". The court should careful "not to seize on occasional omission and infelicities" as a ground for granting judicial review or allowing an appeal (see Lord Bingham CJ also in para 46 of Oyston)" (R (On the application of M) v. Criminal Injuries Compensation Panel [2001] EWHC Admin 720 [44].
"A general explanation of the basis for their determination on the question of serious professional misconduct … will be sufficient in most cases" (per Lord Hope of Craighead in Selvanathan v. General Medical Council [2001] 1 Lloyds' Rep. Med. 17).
"If it is plain from the conclusion of the panel, when considered in the light of the transcript of the evidence, what the basis of the decision is, then that suffices as adequate reasons" (R (Sandeep Luthra) v. General Dental Council [2004] EWHC 458 (Admin) [27]).
VII The Isolated Incidents Point
"… the two cases about which it has heard evidence appear to be isolated incidents against the background of otherwise unblemished medical practice of over 30 years".
VIII The Medical Isolation Point
"The committee have noted that from 1982 you have single-handedly built up the paediatric service in the Isle of Man with its relative medical isolation".
IX Conclusion
MR JUSTICE SILBER: I am very grateful to counsel for all their comments. I have taken on board their amendments, and there will be a few more of my own, but for the reasons which have been set out in the draft judgment the application is dismissed.
MR CLARKE: My Lord, I understand that the claimant is legally aided, so I ask for the normal order in respect of a legally aided claimant. We are entitled to our costs, but obviously they should be subject to the usual order in respect of enforcement.
MR JUSTICE SILBER: Yes.
MR WOLFE: My Lord, I plainly cannot resist that. My Lord, I seek the usual order for a publicly funded claimant in relation to the public funding assessment of my costs.
MR JUSTICE SILBER: Of course. Is there a certificate?
MR WOLFE: I think there is.
THE COURT ASSOCIATE: I do not have the file yet, my Lord.
MR JUSTICE SILBER: Can I say upon --
MR KENNEDY: My Lord, I was going to associate myself with my learned friend's application.
MR JUSTICE SILBER: Yes, I had taken that for granted.
MR WOLFE: Take what for granted?
MR JUSTICE SILBER: I take for granted that Mr Kennedy would also be applying for --
MR WOLFE: He can apply, but I would resist it, my Lord.
MR JUSTICE SILBER: Can we deal with Mr Clarke first?
MR WOLFE: I cannot resist Mr Clarke's application for costs.
MR JUSTICE SILBER: Yes, so far as Mr Clarke is concerned, that is agreed subject to the usual football order terms.
MR WOLFE: Then, my Lord, that order, as my Lord indicated, would be subject to confirmation of the certificate.
MR JUSTICE SILBER: Yes, subject to a certificate being filed. Can I say it should be done -- we had better get this sorted out -- shall we say within 14 days?
MR WOLFE: My Lord, I am sure that is no problem.
MR JUSTICE SILBER: Did you say you were applying, Mr Kennedy?
MR KENNEDY: My Lord, I did.
MR WOLFE: My Lord, I do resist that. My Lord, it is most unusual for the court to order costs for a second defendant. Bolton, in the House of Lords case, makes that absolutely clear. The exception, and the only exception, is where the second defendant has come along and raised substantially different points or run a case that the main defendant would not have been able to run. That is not the case here. Mr Kennedy, indeed, was only involved really in the last day or two before the hearing. There is absolutely no basis, my Lord, for the court to order second costs in a case like this. He is in exactly the same position as the beneficiary, but if he comes along and gives his support that is at his own risk.
MR JUSTICE SILBER: What do you say about that?
MR KENNEDY: My Lord, I think the position is slightly different given that the doctor is entitled -- what is being asked for --
MR JUSTICE SILBER: This is a purely academic point, is it not, of no significance at all?
MR KENNEDY: My Lord, in terms of the costs it may be an academic point, but the doctor was entitled to be here. He had an interest --
MR JUSTICE SILBER: He is entitled to be here, but the Bolton case establishes that it is only if you put forward something additional. My recollection, although it was nice having you here, is that you did not say anything in addition to what Mr Clarke said.
MR KENNEDY: My Lord, that may be the case, but one is still entitled -- the doctor is still entitled to be heard in the event that something arises that is new which --
MR JUSTICE SILBER: I am not sure how I should deal with that, because we have really got to look at the Bolton case again, which I have not looked at for some time. But my recollection is that Mr Wolfe is right on this, and that you really have to say that it is something over and above it.
MR KENNEDY: Well, my Lord --
MR JUSTICE SILBER: Could I do it on this basis: that if you, on reflection, decide that you want to pursue this you can make an application to me in writing on this, and deal with it on that basis? What do you say, Mr Wolfe?
MR WOLFE: My Lord, that is fine from my point of view. I am just rapidly flicking through the White Book because I think it does somewhere set out Bolton. It may make my job slightly easier, I had not expected to face the application.
MR JUSTICE SILBER: My recollection is that normally, in fact, the interested party who just comes along for support is welcome by the court, but does not get their costs.
MR WOLFE: That is right, my Lord.
MR JUSTICE SILBER: I do not think, and do correct me if I am wrong, that you added anything to what Mr Clarke said?
MR KENNEDY: My Lord, forgive me.
MR JUSTICE SILBER: It was nice having you here, but I do not think you added anything to what Mr Clarke said.
MR KENNEDY: My Lord, no, apart from perhaps assisting the court in relation to some of the issues arising in relation to CRHP.
MR JUSTICE SILBER: The what?
MR KENNEDY: Council for the Regulation of Health Professionals. Your Lordship will recall that there was an interlude when we dealt with what powers they had. But I know Mr Clarke would have dealt with that had I not been here. My Lord, I am content to put my submissions in on paper.
MR JUSTICE SILBER: If you wish to pursue it, you have to put your submissions in in writing in 14 days. Mr Wolfe to respond within 14 days, and I will put my answer in writing. But you better bear in mind that I think you have a very uphill battle because my recollection is that you did not add anything, although it was nice to see you here.
MR CLARKE: He is much better looking than me.
MR JUSTICE SILBER: I will reserve judgment on that.
MR WOLFE: I was seeing if I could find Bolton to assist the court.
MR KENNEDY: My Lord, it is page 1292.
MR JUSTICE SILBER: The trouble is that they put a new volume of this book out about every three weeks and I am not sure we all have the same one. 1292, it does not look like it in mine, mine is "Transcripts or notes of evidence". But I have only got the 2003 version.
MR KENNEDY: Well, my Lord it is paragraph 48. My Lord, perhaps it is easier if I put it in in writing.
MR JUSTICE SILBER: Yes, but you might like to reflect --
MR KENNEDY: My Lord, I will.
MR JUSTICE SILBER: I suggest you reflect because my present view is that you have a very, very difficult task.
MR KENNEDY: My Lord, I take your Lordship's indication.
MR JUSTICE SILBER: Yes.
MR WOLFE: My Lord, I seek my Lord's permission to appeal against my Lord's judgment in relation -- well, it may be one point or it may be two points, but it is fundamentally the question of whether the Committee needed to make a discrete consideration and finding in relation to the severity of the charges if found proved as a step within the process of considering whether there was serious professional misconduct, having taken into account the other factors.
My Lord, there is a facet to that which may be a separate challenge, or my Lord may prefer to see it as one, which is that even if they had made such a consideration there is a failure to give proper or sufficient reasons in relation to it. In relation to the latter of those: the reasoned points, particularly the failure in the light of the public purpose, or the primary purpose, of the PCC process, and the need for there to be a public analysis and public understanding of the basis for the decision going perhaps beyond the normal position where it is simply as between the parties.
My Lord, in terms of the main of those points, the discrete severity point, I do place some great assistance, in my submission, from Beatson J's assessment on permission. My Lord has dealt with his position to some extent in my Lord's judgment, but, in my submission, Beatson J was clear on the need for there to be a discrete finding. The tentativeness expressed in his reasoning was as to whether there had in fact been a discrete finding. He was not saying: it is arguable there needs to be a finding, it is arguable there was not one.
MR JUSTICE SILBER: What do you say about the fact that they first considered whether it was capable of being --
MR WOLFE: In my submission that does not cross the threshold. It is rather like saying something is arguable. They asked a negative question. It is rather like saying: is there prima facie evidence? Having established the prima facie evidence you then need to go on to consider that evidence. In this case it is not quite directly the same.
So, in my submission, my Lord, they need to do it. It needs to be something over and above just saying it is capable of amounting to serious misconduct. There was not such a finding in this case, and nor was it properly expressed in reasons.
My Lord, in terms of that, whether my Lord analyses that as one or two grounds, I say I have a real prospect of success on that. Also, there is a compelling need; being the public interest in the appeal rather than in the substantive case, because what my Lord has done is identify an approach which the PCC can, and in subsequent cases no doubt will, take, which is to wrap the whole thing up compendiously and not analyse it, as we say it should be analysed, in stages.
So my Lord, regardless of the facts of this case, and whether I have a real prospect of success on the facts of this case, in my submission that is a point which will affect future cases and future conduct of matters before the PCC, and therefore needs to be considered properly before the Court of Appeal. On either of those limbs, and they are alternative bases for the court to grant permission, I do seek my Lord's permission to go to the Court of Appeal.
MR CLARKE: My Lord, I oppose that. In my submission there is no point of law in this case. My Lord has applied familiar principles to a particular scenario, and my learned friend's attempt to fragment or compartmentalise the process is precisely the sort of thing which my Lord in the judgment has indicated is not the correct approach, which is to tease out errors by, as I say, effectively seeking to compartmentalise or rigidly formalise the approach to the decision-making by this type of public body. To do so takes us in the direction of what Lord Wilberforce would have called (inaudible) in the exercise of the court by angels on heads of pins. That is not the correct approach, and my Lord, in my submission, has correctly applied well established principles of the court to the scenario. The Court of Appeal would be very unlikely to intervene and the court should not grant leave.
MR JUSTICE SILBER: Mr Kennedy?
MR KENNEDY: My Lord, I agree.
MR WOLFE: My Lord, in paragraph 24 of my Lord's judgment, my Lord has set out what is basically a straightforward proposition of law in the last five lines. It follows that, certainly in this case, that there is no reason to narrow it in that way to understand it properly:
"... the PCC were not obliged to assess in isolation... the seriousness of Dr Birkin's failures in his treatment, but merely to regard it as a very important factor..."
My Lord, in order to regard it as a factor it has to be assessed. My Lord, a situation where one has a number of material considerations or matters to put in the balance, one nonetheless has to identify and analyse each of them before undertaking the balancing exercise. But, my Lord, the message that will be drawn, in my submission, from that paragraph in subsequent cases will be --
MR JUSTICE SILBER: One of the things I was going to say was that in any event in this case they had made an assessment. There are two points I was going to put in there. One is the capability point and, secondly, the serious criticism that they had made in their findings.
MR WOLFE: My Lord, obviously my Lord's judgment is slightly different to the draft. That moves things on slightly, but, in my submission, it does not change things materially, because what my Lord has done is set out a statement of law and then gone on to apply it. The statement of law, in my submission, is at least arguably wrong, and a public interest point in clarifying that, because it will arise in all subsequent SPN cases -- that goes to the heart of the SPN analysis process -- and in relation to the subsequent conclusion, my Lord, I would simply say there is a real prospect of success, particularly given the absence of any evidence, according to Beatson J's indication, that that is not a sustainable finding.
So, my Lord, I do say that on either basis, and it only has to be one or the other, that the court should grant permission on that ground or grounds.
MR JUSTICE SILBER: Thank you. Mr Wolfe contends that permission to appeal should be given in this case because it was necessary for the PCC to make findings on the seriousness of the misconduct. He also contends that there was a failure to give reasons and that undermines the purpose of the disciplinary proceedings. He also relies on the comments made by Beatson J when giving permission.
In my view this case does not reach the arguability threshold or the public interest threshold. The PCC said that the conduct was sufficiently serious to be capable of professional misconduct. They also recorded their serious criticism that they made of Dr Birkin.
A further reason is that it is clearly stated by the Privy Council that a general explanation of the basis for the determination is sufficient in most cases. In this case it seems clear that that is what they said because they took those factors sufficiently into account. Therefore I refuse permission.
Thank you all very much for your help on this.