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April 2011: Below I copy the judgment in my judicial review permission hearing (the transcript of which I have only recently received) and my application to the Court of Appeal. Although I believe I'm clearly in the right both legally and ethically, as a litigant in person I expect to lose my application. I will post the result here when I receive it.
CO/14438/09
Neutral Citation Number: [2010] EWHC 3789 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Tuesday, 19th October 2010
B e f o r e:
MR JUSTICE KING
Between:
THE QUEEN ON THE APPLICATION OF X
Claimant
v
GENERAL MEDICAL COUNCIL
Defendant
Computer‑Aided Transcript of the Stenograph Notes of
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The Claimant appeared in Person
Mr Shaw QC (instructed by GMC Legal Department) appeared on behalf of theDefendant
J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE KING: This is a renewed application to apply for permission to apply for judicial review.
2. Mr X, who is in person, seeks permission to challenge the decision of the respondent GMC's Fitness to Practise Directorate of 5th December 2009 not to take action on his, Mr X's, complaint concerning a consultant and oral and maxillofacial surgeon, Mr John Devine and specifically a report from Mr Devine, dated July 2006.
3. The background is that the applicant had previously complained to the GMC regarding treatment which he had received, namely, rhinoplasty, in other words cosmetic nasal surgery, provided by another consultant oral facial surgeon, a Mr Nasser. That complaint was dismissed in October of 2002.
4. Consequent upon the claimant pressing the President of the GMC to review the dismissal of the Nasser complaint, the President instructed, as part of his consideration the application for of review, Mr Devine to report on the standard of treatment and care provided by Mr Nasser. It was that report, to which I have already referred, which Mr Devine delivered on 25th July 2006.
5. The applicant had already submitted for consideration of the President an expert report which he had obtained from a Mr Goldin which report itself was critical of Mr Nasser.
6. The report which Mr Devine delivered, which I have read was critical of Mr Nasser in certain respects. For example at paragraph 5.1 of that report, Mr Devine gave his opinion that the decision to operate on Mr X 2 weeks after discharge from the psychiatric hospital was clearly wrong. But having said that, Mr Devine did report that in other respects the treatment of care provided appeared to be genuine and acceptable. His conclusions are at paragraphs No 9.1 through to 9.2, and his opinion on the quality of the post operative care is at paragraph 10, all of which I have read.
7. The upshot was that the President decided that the dismissal of the Nasser complaint should be maintained. However, he but did so without reliance on Mr Devine's report. He did so on legal grounds concluding he had no legal power to review or overturn the dismissal.
8. The applicant expressed dissatisfaction at the outcome but brought no judicial review claim against that decision.
9. However, some 3 years or so later, the applicant began the process whereby he sought to ask the GMC to investigate his now complaint against Mr Devine. He submitted the complaint first on 19th May 2009 and expanded upon it on 18th September 2009.
10. The first critical decision of the GMC under challenge in this case, is that of 5th October 2009, when the decision was taken, at a very early stage, namely the first tier stage of the decision making process of the GMC in relation to complaints, that no further action was to be taken. I read out the totality of the material letter sent to the claimant by the defendant:
"Dear Mr X.
I am writing further to your recent complaint about Mr John Devine. I am sorry for the delay in our response.
As you know, our Fitness to Practise procedures focus on the most serious concerns, which call into question a doctor's fitness to practise and right to retain unrestricted registration ‑ that is his or her right to work.
We have carefully considered the information you have provided about Mr Devine and understand your reasons for writing to us. We have decided, however, that this is not a matter that justifies action under our procedures.
Your complaint about Mr Devine appears to be about your disagreement with Mr Devine's conclusions in the medical report you refer to. Although we recognise your dissatisfaction with the report's conclusions, there appears to be no suggestion that Mr Devine acted unreasonably or improperly in preparing the report. We are therefore unable to take action on your complaint.
We will not be taking any further action on this matter."
11. The first principal ground of challenge in this application is that this decision of the GMC, through Mr Tim Cox‑Brown, Investigating Manager of the Fitness to Practise Directorate, was wholly irrational, displays errors of law, and did not properly understand the complaint which the claimant was seeking to make against Mr Devine.
12. Mr X pressed on and on 12th October 2009, he asked the President to review the decision to dismiss the complaint. On 26th October 2009 however the dismissal was maintained. This is the second decision which he now challenges. I will read out the letter setting out that decision. It reads as follows:
"Dear Mr X, I write further to previous correspondence, regarding your complaint against Mr Devine including your recent emails to Tim Cox‑Brown and Mr Cox‑Brown's email to you on 12th October 2009, confirming that we would consider whether a review of our decision on your complaint was warranted. I think it is important to emphasise that this letter addresses your complaint and our decision relating to Mr Devine. As we have previously explained we cannot consider your complaints against Mr Nasser further.
In our letter to you of 5th October 2009, we explained we did not consider action appropriate under our Fitness to Practise procedures in relation to Mr Devine. This was because your complaint appeared to us to be about the disagreement and dissatisfaction of Mr Devine's report written in July 2006. In your letter of 8th October 2009, you stated your complaint was about more than just your disagreement with Mr Devine's conclusions.
As you know we can take action against a doctor's registration if we need to stop a doctor from practising or restrict their practice in some way. We considered your complaint against Mr Devine in this context and with regard to whether there appeared to be a question raised about Mr Devine's Fitness to Practise arising from your complaint. We felt there was nothing in your complaint regarding Mr Devine that would warrant this sort of action.
As Mr Cox‑Brown has explained we have the power to review the investigation decisions including the decision not to refer an allegation to a Fitness to Practise Panel but only where there is reason to believe that the decision may be materially flawed or there is new information received which may have lead to a different decision. A review would only be undertaken if the Registrar was satisfied it was necessary either for the protection of the public, or otherwise necessary in the public interest.
We have considered your request. We have decided that seeking to revisit our decision will not be justified. We remain of the view that your complaint is essentially about Mr Devine's comments and conclusions and your objections to them. However, I note your comments in the first paragraph of your 'summary of misconduct' page 12 of your complaint. The report was not obtained in 'secret' nor was it an attempt to ambush you as you describe in your letter. We obtained the report only to inform our assessment of issues raised by you about Mr Nasser. In relation to the content of Mr Devine's report there was nothing ... that Mr Devine did anything other provide the GMC with a report at our request on the basis of his clinical opinion. Mr Devine made it clear in his report that he had not examined you, which is common in medical legal reporting. As long as the expert makes clear in his report the bases on which his opinion is given the fact that a patient has not been examined in person, not in itself raise a question about the expert's conduct.
In terms of your consent Mr Devine was entitled to assume, and we asked him to prepare the report on the basis, that you consented to the enquiries being undertaken.
In considering your complaint against Mr Nasser we obtained your consent to investigate your complaint. I recognise that your complaint against Dr Nasser was closed at the point that we asked Mr Devine to prepare his report but we did not revisit the issue of consent given that you had previously consented to us carrying out investigations on your complaint including disclosure of papers relating to your complaint and the courts investigation procedures. I should add in relation to your points about not being able to question Mr Devine's experience or the basis on which he had chosen, that it is for the GMC to instruct an expert who is appropriately qualified to provide an opinion. Mr Devine is a consultant surgeon with extensive experience including in facial, plastic and reconstructive surgery.
I recognise that you will be disappointed with this response but I hope you will understand why revisiting our decision to take no action on your complaint would not be warranted in these circumstances. We have received a further letter dated 2nd October 2009, on your behalf from Mr Greg Hans, regarding your complaint. I am copying Mr Hans into this letter so he is aware of the action being taken." (quote unavailable for checking)
13. Again this decision is challenged on the basis that it was irrational and was a result of error of law.
14. There is no dispute that the Rule which the Registrar was applying, at the initial tier 1 stage, when he decided on 5th October to refuse the complaint, was that in Rule 4, in conjunction with rule 7(1)(a) of the General Medical Council (Fitness to Practise Rules) 2004. At this first tier of the decision‑making process, the Registrar decides on paper whether the complaint contains matters which appear to raise a question as to fitness to practice. A review, which the President declined to exercise on 26th October, is governed by rule 12, which requires the identification of a possible material flaw in the original decision, or the receipt of new information which might have led to a different outcome and hence the establishment of a necessity to undertake a review in the public interest.
15. The claimant in his amended grounds has explained why he says he was not simply disagreeing with the conclusions of Mr Devine's report and that his complaints went outside that narrow aspect. The claimant here explains in summary that upon which he has expanded in some detail before me today as to why his complaint, in essence was and is one of dishonesty against Mr Devine. At page 2 of his amended grounds he says this:
" In summary of my Devine complaint, I allege that he;
(i) wrote his report in secret, enabling the GMC to send me the report without prior warning. This secrecy involved Mr Devine not seeing me in person and thereby not examining the scars, not discussing my account of events (and then using his report to ignore my testimony and discredit me as a witness) and not verifying whether the GMC had obtained my informed consent for him to write the report. The absence of my informed consent ensured that I was not able to ask to see Mr Devine in person.
(ii) deliberately seeks to downplay and ignore the incisions in-question (and the resulting scars), despite their legitimacy obviously being at the centre of what was my Nasser complaint and the most serious allegations raised by Mr Goldin's report. The central aspect to this allegation concerns the point in Mr Devine’s report where, even though Mr Devine was unable to indicate what clinical purpose the external nasal incisions at the centre of Mr Goldin's report could possibly have served, Mr Devine assumes that these incisions must have served a legitimate purpose because Mr Nasser is an experienced surgeon. That is patently a ridiculous and unacceptable conclusion, yet it is on this assumption that the whole of Mr Devine’s report is based.
(iii) deliberately ignores Mr Nasser's pre-operative letter to Dr Veale, with what Mr Goldin cites is its "untrue and misleading" claim.
(iv) deliberately skims over serious issues of informed consent.
(v) accuses me of being "very abusive", in my correspondence to Mr Nasser, without retaining a balanced viewpoint. This is a case of demonising the messenger (i.e. me). By contrast, Mr Devine’s report contains no such strong criticism of Mr Nasser. Mr Devine notes that my alleged abuse of Mr Nasser (which I refute) “ought to be recorded” yet he simultaneously saw fit to omit Mr Nasser’s pre-operative letter to Dr Veale from his report.
(vi) displays an undercurrent of prejudice towards me and my BDD mental health condition.
(vii) Wrote a report which is dishonest, deliberately misleading and deceptive; biased towards Mr Nasser; an abuse of his position as an expert and not in the best interests of Mr Nasser's patients. This raises serious issues of probity against Mr Devine and is in serious contravention of various sections of the GMC guidance"
I mean no disrespect to Mr X when I say that I use this as a summary of the matters which he has since put in far more detail, both in writing and orally.
16. When the matter came before the judge on the papers, His Honour Judge Anthony Thornton QC, refused permission. He did so giving detailed reasons as follows:
1. The claimant seeks judicial review of the decision of the defendant, taken by the Investigation Manager, dated 5 October 2009 that it was unable to take action on the claimant's amended complaint dated 20 September 2009 against Mr Devine that Mr Devine was unfit to practise. The effect of the decision was that the complaint did not raise an allegation which could lead to a finding of unfit to practise and it should therefore be dismissed at the first screening stage of the unfit to practise complaints procedure.
2. The defendant decided that the claimant's complaint related to the written report that Mr Devine had prepared for and on the instructions of the defendant where the claimant disagreed with the opinions expressed by Mr Devine. Moreover, all other allegations could not lead to a finding of unfit to practise since the only conduct referred to that could amount to unfitness to [practise] was impropriety, bad faith or malice but these allegations of the claimants to this effect were totally without merit and were not supported by any credible evidence. In consequence, the complaint was dismissed at the first stage of the defendant's complaints procedure without being referred to the Case Examiners, being the second stage of that procedure.
3. The unfitness to practise complaints procedure against Mr Devine' could only have been engaged by the claimant's complaint if that complaint fell within section 35C(2) of the Medical Act 1983, in other words were complaints that related to Mr Devine's alleged 'misconduct' or to 'deficient medical performance' since the other bases of jurisdiction were not alleged and could not arise in his case. The first stage of the procedure is a screening stage and it allows the Registrar or duly authorised official (who is not medically qualified) to dismiss the complaint but only if it is raises complaints that do not fall within the conduct defined by section 35C(2) of the Medical Act 1983.
4. The complaint against Mr Devine related to the preparation of a report that was commissioned by and for the President of the GMC and on his instructions. It was prepared to provide him with advice to assist him in deciding whether to review the defendant's previous dismissal of an unfitness to practice complaint that the claimant had made against another medical practitioner, Mr Nasser in April 2002 which had been dismissed by the defendant in October 2002. The claimant had asked the President to review this dismissal considers that Mr Devine made a series of errors in his reasoning and advice and that those perceived errors of professional opinion should have been referred to the second stage complaint procedure. That failure to refer is said to be irrational, decided in bad faith or arose due to judicially reviewable procedural deficiencies occurring during the first stage investigation.
11. The claimant has contended that Mr Devine's advice was in error without the benefit of any supporting medical or professional opinion. He also contends that Mr Devine was motivated by malice and bad faith (1) towards him and (2) in falsely and deliberately exonerating Mr Nasser when he knew that his conduct was seriously blameworthy. Therefore, since these complaints are clearly identified in his complaint, it was incumbent on the first stage investigation to refer these complaints to the second stage. The failure to refer is, in consequence, self‑evidently judicially reviewable.
12. However:
(1) There is no evidence set out or referred to the claimant's complaints which is capable of leading to a finding of malice or bad faith by Mr Devine.
(2) The complaints either relate to Mr Devine's performance of his third party instructions or amount to complaints that he considers that Mr Devine was wrong. These complaints are clearly incapable of being made good and, if made good, are capable of amounting to unfitness to practice by Mr Devine.
(3) In any event, the complaints are not referable by the claimant to the unfitness complaints procedure for each of the reasons set out in paragraph 7 above.
(4) There is therefore no basis for alleging that the defendant acted irrationally or in bad faith and there is no evidence of judicially reviewable procedural deficiencies.
(5) There was no error demonstrated in Mr Devine's conduct or advice. Therefore, the defendant's decision not to refer was correct.
(6) The complaints do not fall within section 35C(2) and their dismissal on the ground that that the complaint did not fall within that section so was both within the competence of the first stage decision‑maker and was correct.
(7) The defendant's grounds of defence are correct and show why the defendant's decision is not judicially reviewable.
13. In short, the claimant's grounds are completely without merit. Permission is refused."
The judge final conclusion at paragraph 13 was in short that the claimant's grounds were completely without merit.
17. Notwithstanding the eloquence with which Mr X has put his case to me today, I have received nothing from him, either orally or in writing which would lead me to conclude that the judge on the papers came to a wrong conclusion. To the contrary I concur entirely with the judge. None of the material which I have seen discloses in any way an arguable case that the decisions under challenge were reached by error of law or irrationally.
18. The essential question I have to consider is whether that which Mr X has sought to lay before me, as he did before the GMC is or was was capable of leading to a finding of misconduct against Mr Devine and a finding of his being unfit to practise.
19. I have seen nothing which is capable of supporting such a finding against Mr Devine, remembering that the purpose of the GMC's role is to decide whether or not the allegations made raise questions about Mr Devine's fitness to practise. It is no part of the complaint procedure which Mr X sought the GMC to undertake, simply to revisit Mr Devine's opinion to see whether or not his conclusions in respect of Mr Nasser were in some way flawed.
20. At paragraph 3 of the skeleton argument on behalf of the GMC Mr Shaw QC says this:
"In reality, the claim a disguised, collateral and hopelessly late attempt to revive issues underlaying the Claimant's complaint against Mr Nasser (not Mr Devine), which the GMC dismissed eight years ago, even though the Claimant has explicitly accepted that that complaint is closed."
Notwithstanding the valiant attempts of Mr X to convince me that his desire is in truth to have investigated matters of conduct which raise question marks over Mr Devine's fitness to practise, I concur entirely with the assessment of Mr Shaw.
21. What I shall call the ancillary matters which Mr X seeks to raise, apart from his clear disagreement with Mr Devine's conclusions, that is to say those relating to secrecy, failure to obtain his consent, failure to refer to the letter from Dr Nasser to Dr Veale, and so forth are without substance in my judgment as regards the issue of matters going to the fitness of Mr Devine to practise. These allegations made by the claimant in his Divine complaint are for the most part procedural and cannot conceivably cast doubt on the fitness to practise of Mr Devine himself. Even if they were well founded they are criticisms of a process adopted by the GMC when considering whether to review the dismissal of the Nasser complaint. It has to be remembered that Mr Devine never treated the claimant as such, and there has been no allegation of any clinical failure. Even if, for example there was a flaw in the way in which consent was obtained, I accept entirely the submission of the defendant that this could not throw into question Mr Devine's fitness to practise. He was entitled to assume, as report authors typically do, that consent was in place.
22. The complaint, further, that Mr Devine should have examined the claimant is not one which in my judgment bears consideration as an allegation going to fitness to practise. This was a report necessarily which would be written on the basis of contemporaneous medical records sent to the author and I note that Mr Devine was provided with extensive documents and photographs, which revealed the claimant's version of events and his criticisms. There was nothing in the report to suggest that Mr Devine did not feel able to report without conducting an examination. Whatever Mr X may feel about the failure to examine him, again, in my judgment, this goes no way to supporting an allegation, throwing into question fitness to practise.
23. Moreover, having read the papers, and having read the detailed submissions of Mr X, the allegation that Mr Devine was dishonest and biased is one which in my judgment has no foundation whatsoever. Certainly, there can be no arguable case that the GMC were irrational or in error of law in concluding that there was no basis for such an allegation.
24. It is unnecessary for me to go further in this judgment, other than to say that I concur entirely with the analysis of His Honour Judge Thornton QC. For all these reasons and notwithstanding, I repeat, the way in which the argument has been carefully put to me by Mr X I dismiss this application.
25. MR SHAW: I ask your Lordship to dismiss the claim with costs. I invite you to deal with costs today, rather than send them to detailed assessment. Can I make some brief remarks in mind of time.
26. MR JUSTICE KING: Has Mr X seen this?
27. MR SHAW: Yes, he has seen the schedule of cost which I hope has reached the Bench but unless it is another document that has gone astray, can I hand up a spare?
28. My Lord, the starting point again is the written observations of Judge Thornton QC. "Typically successful defendants are entitled to their costs of the written phase under Mount Cook principles." Here Judge Thornton ordered Mr X to pay the GMC's costs of the written phase as of March of this year. He did not impose a ceiling. It is right at the beginning of his written remarks. He did not impose a ceiling. He said the costs should be assessed if not agreed but an interim payment on account of £1,000 was ordered. Nothing has been paid or assessed so far because Mr X renewed his claim.
29. But the defendant, now, we say, is entitled to costs of the oral permission appeal, the decision on the written phase should stand, we say. But so far as the oral permission is concerned, can I make a few remarks as to why we should be entitled to costs of that as well.
30. The claim is and always has been hopeless. As explained by the GMC initially in its correspondence, as explained by Judge Thornton, and finally, as explained by your Lordship today. That should not come as any surprise to Mr X. He was warned repeatedly at every stage of this litigation that the claim was hopeless and the costs would be sought. He was warned about that in the letter before claim, the response to letter before claim at page 15 of the bundle and at the summary grounds at paragraph 31 of the summary grounds.
31. But he has carried on regardless. He was then told by Judge Thornton, with reasons that his claim was completely without merit and he still carried on regardless. He has, we say, sought to use this claim as a device to attack the treatment of his allegation against Mr Nasser as indeed has been under scored in the judgment you have just delivered. The claim has now been dealt with in some considerable detail on the papers and indeed today in some considerable detail so it has to a large extent been given not a fully substantive consideration but more than the average permission consideration, and your Lordship has delivered a very detailed and careful judgment today.
32. Can I add the GMC is a public body. It is also a charity. It is charged with acting in the public interest to protect patients. We say it should not be left out of pocket or at least not substantially out of pocket because Mr X has persisted in what is by all accounts a misguided claim.
33. So, those are my points on my ability. Can I mention even more briefly some points on Thornton. The amount of costs has been increased by the large volume of material which Mr X has lodged. Indeed the confusion caused within that material by the way it has been putting together, the evidence and pleadings have been long and some times rambling. The GMC's documents and the GMC's task has been to explain and simplify what is a very complicated 10‑year history going back to October 2000. Before it could deal with Mr X's various grounds and they have been many grounds and satellite grounds. So it has involved far more work, as you can see from the schedule than would be normal for a permission application.
34. My Lord, that is all I propose to say. I am content to leave it to your Lordship to decide what is a reasonable figure. But I do say the GMC is a charity and should not be considerably out of pocket as a result of Mr X doing what he was repeatedly urged not to do.
35. MR JUSTICE KING: I noticed the grand total of the schedule is over £20,000.
36. MR SHAW: Including VAT. It was just over £8,000, in March, when Judge Thornton QC‑‑
37. MR JUSTICE KING: If I am with you ‑‑ I may not be ‑‑ if I were, it would include everything that Judge Thornton was....
38. MR SHAW: I certainly say that was is the indication from Judge Thornton's remarks that he was contemplating, all or substantially all of that figure. Mr X cannot be better off, as we stand here today having pursued it further.
39. MR JUSTICE KING: What was the figure before Judge Thornton?
40. MR SHAW: It was £8,400 plus VAT. Let me check that was a VAT free figure. One moment.
41. MR JUSTICE KING: I have yet made no order Mr X, I assure you.
42. MR SHAW: £7,800, plus VAT. It is attached to our summary grounds of defence. So behind the acknowledgement of service, we have that. And I accept that is what he was considering in March of this year. I accept that is more than an average permission bill, but this is not an average permission case. I am not urging your Lordship perhaps to order that we should have all of it. I am inviting your Lordship to say that Mr X has to a large extent brought this on himself and should have been fully aware of the risks he was running. We should have a substantial part of that figure.
43. MR JUSTICE KING: Very well Mr X, they are asking for costs against you in the sum of £20,000. What do you say?
44. THE CLAIMANT: [ ... ] would be devastating if you wanted to take anything more than £1000. I don't accept any of Mr Shaws QC's insults or comments. As far as the GMC being a charity, I think we all know what its history is in terms of Dame Janet Smith's ruling, how it has failed patients, how it's favoured doctors. I don't think he is coming from a position of highness and looking down at me as he seems tries to pretend. I do not accept. I'd like to ask for permission to take to the Court of Appeal please.
45. MR JUSTICE KING: Two things first. First one is dealing with the costs.
46. THE CLAIMANT: I appreciate you know. I cannot afford a thousand but anything more than a thousand is probably going to bankrupt me.
47. MR JUSTICE KING: Mr Shaw in terms of enforcement that is different, is it not?
48. MR SHAW: I accept that.
49. MR JUSTICE KING: Thank you. In my judgment the defendants are entitled to their costs, both of the preparation of the acknowledgement of service and of the hearing today and costs associated with it. Their task has been made undoubtedly the more difficult and burdensome because of the way Mr X has chosen to present and prepare his case, the amount of material he has chosen to produce and the way in which he has amended his grounds in order to put his position in a different way.
50. Having said all that, I do not intend to award the full total of costs which have been asked for, which were some £20,000. I am going to do justice in this case in a rough and ready way, I am going to order costs which I assess in the sum of £5,000. Enforcement will be a matter for a different process. Mr Shaw, what is the next stage so far as costs in terms of enforcement?
51. MR SHAW: I think that is something for my solicitors to consider and no doubt we will consider the remarks you have made in delivering your costs judgment. So far as today is concerned you need to say no more.
52. MR JUSTICE KING: Mr Shaw before I hear Mr X, do I have power to give permission to appeal?
53. MR SHAW: No he needs to ask the Court of Appeal which deals with it initially on the papers.
54. MR JUSTICE KING: Mr X I thought that was the case. If you want to appeal the decision I have given, you have to make your application for permission to appeal to the Court of Appeal itself.
55. THE CLAIMANT: How long do I have to appeal?
56. MR JUSTICE KING: I cannot advise you, I am awfully sorry. I am sure you can get advice from the court office.
57. MR SHAW: I believe it is 14 days.
58. THE CLAIMANT: £5,000, how long do I have to pay?
59. MR JUSTICE KING: I understand it Mr X I myself have made no order as to when it must be paid. It will be for the GMC to decide how they go about enforcing it. If they choose to seek to enforce it through the court process you will be able to make representations to any court, and your ability to pay.
60. THE CLAIMANT: I would like to say his argument is perverse in terms of trying to say I have been rambling and cost all this money and they are a charity. If you look at the history of my case, it is a clear injustice and they've abused their position. So you know that's why I will be taking it to the Court of Appeal. Thank you.
61. MR JUSTICE KING: Thank you Mr X
Grounds of Appeal in x v General Medical Council. (Amended 2 April 2011)
First, I detail the crux of my Devine complaint and why the GMC’s decision to reject it is wrong in law:
1. The following is the legal test to be applied when establishing dishonest conduct by doctors. At paragraph 18 of the judgment in Amir Maqbul Khan v GMC of 17 October 2008 (section 10 of the bundle index), it states:
the Panel, in reaching its decision in respect of dishonesty:
“ … took account of the Privy Council case of Ghosh reference 1982 Q.C. 1053, 75 CR.App.R.154 . Lord Lane concluded that ‘ there are two aspects to dishonesty: the objective and the subjective, and that the tribunal of fact, in determining the issue, would have to go through a two-stage process before it could convict’ .
‘ In determining whether the (Council in this case) has proved that the defendant was acting dishonesty, a (Panel) must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest. If it is not dishonest by those standards, that is the end of the matter and the (case) fails.’
Furthermore Lord Lane also stated:
‘ If it was dishonest by those standards, then the (Panel) must consider whether the (doctor) himself must have realised that what he was doing was by those standards dishonest. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the (doctor) himself knew that he was acting dishonestly. It is dishonest for a (doctor) to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.’ ”
2. Furthermore, the GMC’s Guidance on Probity states:
(63) You must be honest and trustworthy when writing reports, and when completing or signing forms, reports and other documents.
(65) You must do your best to make sure that any documents you write or sign are not false or misleading. This means that you must take reasonable steps to verify the information in the documents, and that you must not deliberately leave out relevant information.
Similarly, the GMC’s Expert Witness Guidance states:
(10) You must make sure that any report that you write, or evidence that you give, is accurate and is not misleading. This means that you must take reasonable steps to verify any information you provide, and you must not deliberately leave out relevant information.
3. I allege that by the above “ordinary standards” the following two actions by Mr Devine in preparing his report were dishonest and seriously misleading, and as such were in serious contravention of the GMC’s above guidance.
(1) Mr Nasser’s pre-operative letter to Dr Veale, states:
“volume reduction can only be achieved by placing external incisions along the shadow lines, which demarcate the anatomical sub units of the nose.”
Mr Goldin’s report makes this statement the basis for serious criticism of Mr Nasser, describing it as “untrue and misleading”. Mr Devine had access to Goldin’s report when preparing his own report, yet Mr Devine’s report makes absolutely no comment on Mr Nasser’s pre-operative letter to Dr Veale - let alone its above statement, or Mr Goldin’s opinion on it. Mr Devine’s report does, however, note the existence of the letter.
I allege that it was obviously essential for Mr Devine to address this letter from Mr Nasser. Furthermore, I contend that Mr Devine would be unable to support the claim made in Mr Nasser’s letter were he to address it. Therefore, had Mr Devine addressed Mr Nasser’s claim, I contend that it would have necessarily coloured the whole tone of his report, resulting in a far more negative - indeed a very different - appraisal of Mr Nasser’s actions.
I contend that Mr Devine's omission of any comment on Mr Nasser's pre-operative letter to Dr Veale was in likelihood deliberate, in order to gloss over the serious evidence against Mr Nasser.
(2) Mr Shaw QC claims that Mr Devine’s report deals with Mr Nasser’s incisions in-question, “especially paragraphs 9.1 and at the end of 9.2”. Yet I allege that Mr Devine did not deal with them properly.
The incisions which I required investigating are those which Mr Nasser made in, and extending from, the supra alar crease. Mr Goldin addresses these incisions in paragraphs 4.1 to 4.6 (amongst others) of his report. He condemns their use by Mr Nasser unequivocally, making the points: (1) that the incisions were wholly inappropriate, had no medical, cosmetic or functional purpose whatever, and would only result in unacceptable, distinctive and unnecessary scarring; (2) that no reasonable body of plastic, reconstructive/cosmetic surgeons would support their use, which is contrary to any normal, acceptable practice; (3) that the inevitably resulting scars would be unacceptable to any patient, but particularly one with BDD. He concluded that an investigation by the GMC was warranted: see paragraphs 4.3 and 4.6.
By contrast, Mr Devine’s attempt to address these incisions is wholly inadequate. At paragraph 8.2(d) of his report, he records Mr Nasser’s surgical objective as; “Excision of the skin ellipsis along the ‘aesthetic shadow lines of the periphery of the aesthetic sub units of the nose’.” At paragraph 9.1 he states that this “is not a technique I am aware of” and that the use of the incisions in-question “does seem rather strange”. Although this reveals that he is unable to endorse Mr Nasser’s use of the incisions, it is also an unacceptable evasion of his responsibility as an independent expert witness to grasp the central issue of whether the incisions had any proper or recognised medical or cosmetic purpose.
Mr Devine then seriously compounds this evasion by going on to speculate, at paragraph 9.1: “I can only presume that Mr Nasser, as an experienced rhinoplasty surgeon, has learned this technique during his career and has used [it] successfully before”.
The legitimacy of these incisions was obviously the most serious matter raised by Mr Goldin’s report, and Mr Devine knew this.
Despite Mr Devine’s qualifications and experience in the relevant surgical discipline, he had no prior knowledge or experience of Mr Nasser’s incisions in-question and was not able to indicate what clinical purpose they could possibly serve. And despite these incisions not being explained by, or justified with reference to, the records, Mr Devine’s report makes the leap of assuming that the incisions in-question must have been legitimate on the wholly untenable basis that Mr Nasser is an experienced surgeon. It appears that Mr Devine assumes the incisions must have served a legitimate purpose - despite all evidence to the contrary - because he is unwilling to contemplate the possibility that they did not. Of course, for Mr Devine’s report to contemplate such a possibility would discredit its whole foundation and the flawed premise on which it is based. Such conduct makes a mockery of the concept of rigorous, evidence-based expert reporting.
Mr Devine must have known this did not conform to the standards expected of an expert-report writer. This raises the question why Mr Devine was so fundamentally incurious. I contend that Mr Devine’s avoidance of the incisions in-question was likely designed to exculpate Mr Nasser from serious blame and obviate the need for an investigation, out of a misplaced sense of collegiate loyalty.
The GMC has steadfastly ignored my allegation that Mr Devine’s assumption concerning the legitimacy of the incisions by Mr Nasser, on which Mr Devine’s report is based, is dishonest and seriously misleading, despite this being the central allegation in my Devine complaint.
4. I contend that Mr Shaw QC’s claim that Rule 4 and 7 (1) (a) “confer a wide discretion on the Registrar, at the first tier, to consider whether the Devine complaint ‘appear[ed] to raise a question’ of impaired fitness to practise” is wrong in law, because I do not accept that the discretion is “wide”. In fact the permission hearing judge in RemedyUK’s last judicial review (section 10 of the bundle index) described it as a “very narrow” filtering role. The triage stage’s very narrow filtering role cannot confer what Mr Shaw QC describes as a wide discretion at that stage.
5. The selected reason in the triage decision form, for dismissal of my detailed Devine complaint, is narrow and does not cover my allegation of misconduct. A proper consideration of my Devine complaint ought to recognise that it makes far more than just a “suggestion” that he “failed to put himself in a position to make the judgment” contained in his report, and constitutes a serious allegation that goes beyond a mere “disagreement with clinical judgment”.
6. Mr Justice Collins’ judgment in R (Pal) v GMC of 24 April 2009 is clear that the Registrar’s role at the triage stage is narrow.At paragraph 12 of Mr Justice Collins’ judgment he describes the Registrar as previously having a “limited” role at the first tier under the 1988 GMC Rules, with the 2004 GMC Rules providing only a “slightly extended role to the Registrar, albeit not to a very great extent”. Mr Justice Collins goes on to state that the role is extended “if only” in the sense that it allows the Registrar to apply the five year time rule and conduct some initial investigation. This “slightly extended” role has not been extended enough for it to now convey what Mr Shaw QC describes as a “wide discretion” on the Registrar at the first tier.
7. According to Mr Justice Collins’ judgment: “It is no part of the Registrar’s functions to decide whether there has been unfitness to practise” (paragraph 33); “the Registrar will look at the allegation made, rather than go into any question as to whether the facts are likely to be established or not” (paragraph 35) . His judgment concludes that, in relation to the Registrar’s decision, “the question is essentially whether the allegation is capable of producing a finding of misconduct” (paragraph 45). It is not up to the complaint to demonstrate its own veracity at the triage stage, unless the complaint discredits itself by being wholly irrational. It is for the ensuing investigation to establish fact. The GMC wrongly goes into answering the ancillary allegations of my Devine complaint without an investigation (in contradiction to the GMC guidance on expert witnesses, expressions of consent and confidentiality), while ignoring the two most serious allegations detailed above (and their alleged contravention of the GMC guidance on probity). It is clear that my Devine allegation requires referral to the Case Examiners for investigation.
Next, I respond in detail to HHJ King QC’s judgment of 19th October 2010:
8. At paragraph 6 of HHJ King QC’s judgment he notes that Mr Devine’s report is not without criticism of Mr Nasser. However, my point is that it is obviously unacceptable for an expert-report writer to make a lesser criticism of a doctor in substitution for the absence of an appropriate consideration of a far more serious one; yet that is exactly the approach by which Mr Devine’s conclusions are reached. In his keenness to avoid serious criticism of Mr Nasser, Mr Devine’s report completely skirts around the issue of the incisions in-question.
9. At paragraph 10 of HHJ King QC’s judgment he quotes Mr Cox-Brown’s letter to me of 5 October 2009, conveying the Triage decision of the same date, which refused investigation and closed my Devine complaint. This letter claims that my Devine complaint is “about my disagreement with Mr Devine’s conclusions”, but my Devine complaint obviously makes more serious allegations than that – as I have just detailed. This letter’s claim that “there appears to be no suggestion that Mr Devine acted unreasonably or improperly in preparing the report” is irrational.
10. At paragraph 12 of HHJ King QC’s judgment he quotes Mr Marshall’s letter of 26 October 2009. Mr Mashall’s letter claims that the GMC have considered; “whether there appeared to be a question raised about Mr Devine’s fitness to practise arising from [my] complaint.” His suggestion that my Devine complaint raises no such question is irrational. He claims that my complaint is “essentially about Mr Devine’s comments and conclusions, and [my] objections to them”. The serious nature of the crux of my allegation against Mr Devine is ignored by Mr Marshall’s summarisation that my allegation “essentially” falls under the category of my disagreement with Mr Devine’s opinion.
11. Furthermore, Mr Marshall wrongly attempts to go into answering some of the ancillary questions posed by my Devine complaint in regard to how the report was prepared, and these answers are seriously flawed (when contrasted against the relevant GMC guidance). It is for the Case Examiners to go into those answers, not for the GMC to pre-empt that stage in an attempt to avoid investigation of what are my legitimate concerns with regard to Mr Devine.
12. At paragraph 16 of HHJ King QC’s judgment he quotes the decision on the papers by HHJ Thornton QC. The following are my comments on Mr Justice Thornton’s judgment.
At paragraph 7 of HHJ Thornton QC’s judgment:
I am not sure why HHJ Thornton QC claims that Mr Devine was not acting as an expert. I contend he is clearly mistaken. Whilst Mr Devine undoubtedly was “acting as an advisor to the President in an ad hoc instruction given to him by the President”, he was acting in his capacity as an expert in the relevant surgical discipline (if perhaps not strictly as an expert witness). That role carried with it ethical duties and considerations as detailed in the GMC’s relevant guidance. Whilst HHJ Thornton QC correctly goes on to note that Mr Devine was not acting “as an expert for and on behalf of the Claimant”, given the judge’s stance it appears contradictory that he simultaneously omits to state this in parallel terms with regard to Mr Devine’s role for the GMC. I contend this omission is because Mr Devine clearly was acting as an expert, indeed his own report describes itself as an expert report. HHJ Thornton QC’s rigid distinction between an ad hoc advisor and an expert is a false dichotomy. The “third party instructions” and “ad hoc advisor” phrases have been used in a euphemistic way.
I contend that HHJ Thornton QC's suggestion that Mr Devine was required to "comply" with the President's instructions above all else is mistaken. Mr Devine had a duty to act independently and was responsible for doing so. Any fault in the President's instructions does not automatically absolve Mr Devine of his duty to form his own independent response to them. As for whether “his advice fell within the broad range of possible advice open to a specialist” I maintain that it did not because it went beyond acceptable practice in a variety of ways, the most serious of which was dishonesty (thus I contend that Mr Devine was indeed acting in bad faith).
At paragraph 10 of HHJ Thornton QC’s judgment:
It is seriously inaccurate for HHJ Thornton QC to assert that “all” my complaints against the GMC’s failure to investigate Mr Devine are: “to the effect that the defendant did not agree with his complaints about Mr Devine’s conclusions.” My two central allegations, detailed at the start of these Grounds, go beyond a mere complaint that the GMC does not agree with my complaint about Mr Devine’s conclusions.
At paragraph 11 of HHJ Thornton QC’s judgment:
Complainants to the GMC have absolutely no obligation or responsibility to provide a “supporting medical or professional opinion”. To suggest that my complaint required this places on it an unjust and incorrect burden of evidence. It is also not strictly true that I have no supporting medical or professional opinion. Although it is of course not explicitly supportive of my Devine complaint, Mr Goldin’s expert report acts as critical evidence throughout my Devine complaint.
At paragraph 12(5) of HHJ Thornton QC’s judgment:
Where HHJ Thornton QC implies that my Devine complaint is irrational (although he does not do so in terms), the law becomes muddied because: (1) If the reason for rejection of my complaint by the GMC had been because my serious allegations against Mr Devine were considered to be wholly irrational then that reason ought to have been selected for dismissal of my complaint (whether either the sole or main reason), yet it was not selected; and (2) I do not accept that any of my complaint is wholly irrational and contend that I am able to coherently argue any point in-question.
13. At paragraph 17 of HHJ King QC’s judgment he notes the “eloquence with which [I] put my case”. Such eloquence cannot be simultaneously “wholly irrational”, as required by the triage decision form for closure of my two most serious allegations against Mr Devine. Therefore a question going to Mr Devine’s fitness to practise is raised by my Devine complaint. None of the numerous reasons available for closure of a complaint at the GMC’s triage stage are speculative, for the precise reason that proper investigation must not be pre-empted by the triage stage.
14. At paragraph 19 of HHJ King QC’s judgment it is a serious error of fact for the judge to state that I “ sought the GMC […] simply to revisit Mr Devine’s opinion to see whether or not his conclusions in respect of Mr Nasser were in some way flawed.” I allege dishonesty by Mr Devine, which goes beyond a mere quibble with his opinion. The GMC’s Indicative Sanctions Guidance states, at paragraph 108 and 109 respectively, in relation to dishonesty, that:
Dishonesty, even where it does not result in direct harm to patients but is for example related to matters outside the doctor’s clinical responsibility…is particularly serious because it can undermine the trust the public place in the profession;
Examples of dishonesty in professional practice could include […] failing to take reasonable steps to ensure that statements made in formal documents are accurate.
15. At paragraph 20 of HHJ King QC’s judgment it is an error of law for the judge – just as it was for the GMC – to speculate over my motives for bringing the Devine complaint without giving due regard to the substance of the allegations. The issues I am now complaining of concern Mr Devine, not Mr Nasser. While it is of course necessary for me to place my Devine complaint in detailed context with the issues that Mr Devine’s report addresses, my Devine complaint does not seek, or expect, answers to, or a revival of, my closed Nasser complaint. My Devine complaint needs to be taken on its own merits.
16. As for the criticisms of Mr Nasser in my Devine complaint, it is of course necessary for me to place Mr Devine’s report in detailed context with the issues it addresses. It is absurd to suggest that just because the content of my Devine complaint involves serious allegations against Mr Nasser which were never investigated by the GMC (ostensibly due to what was a complex but questionable technicality), Mr Devine should also be let off the hook. That it is too late for me to challenge the GMC’s failure to investigate Mr Nasser should not then automatically absolve Mr Devine of his misconduct in providing a whitewash report simply because that report concerns the closed complaint against Mr Nasser.
17. I therefore do not accept that the most serious allegations I raise against Devine are in any sense “ancillary matters” - as HHJ King QC describes them at paragraph 21. Although Mr Justice King makes a cursory mention of the letter from Mr Nasser to Dr Veale, he avoids mentioning the central crux of my complaint, which forms the second allegation detailed at the start of these Grounds. HHJ King QC simply attempts to allude to the crux of my Devine complaint with the vague phrase “and so forth”. It is a clear error of fact and seriously unjust for HHJ King QC to state that my allegations against Devine are “for the most part procedural”.
18. That my Devine complaint “makes no allegation of any clinical failures” against him in no sense negates it as a serious allegation, as confirmed by the above quote from the ISG. Doctors’ duties and ethical responsibilities cover all areas of their professional work as a doctor (and beyond), and my allegation of dishonesty against Mr Devine is patently a serious one. The role he undertook as an independent expert is well within the scope of the GMC’s jurisdiction. The ancillary allegations in my Devine complaint - although ancillary only to the two central allegations detailed at the start of these Grounds - such as failure to verify that my consent had been obtained and to see the scars in person ought not to be dismissed without an investigation as they detail clear contraventions of the GMC’s published guidance (which I have addressed in my judicial review oral permission hearing skeleton argument in the bundle).
19. In the hearing HHJ King QC stated in his ruling (without giving any justification for doing so) that the letter from Mr Nasser to Dr Veale did not need to be addressed by Devine’s report. To go into this question and arrive at a cursory and dismissive answer without an investigation was a blatant error of law. However, the statement has been removed from the transcript. The error of law now manifests itself through omission of any comment on the central two allegations detailed at the start of these Grounds, in effect downgrading my Devine complaint into a lesser allegation than it really is.
20. At paragraph 23 Mr Justice King concludes; “Moreover, having read the papers, and having read the detailed submission of [X], the allegation that Mr Devine was dishonest and biased is one which in my judgment has no foundation whatsoever. Certainly, there can be no arguable case that the GMC were irrational or in error of law in concluding that there was no basis for such an allegation.”
21. However, I contend that, for the reasons given in these Grounds, the judge’s dismissal of my Argument is manifestly unjust, involving serious errors of both the facts and the law. My permission hearing skeleton argument, and the previous grounds, make clear my two central allegations against Mr Devine, yet the GMC have ignored them and both judges have entirely failed to address them. It is an important matter of law that the GMC’s guidance in relation to the writing of expert reports is adhered to by doctors, and that the GMC enforces this guidance. Mr Justice King’s ruling ought not to stand as the final word on what I allege are serious contraventions of the relevant sections of the GMC guidance – otherwise a legacy of bad case law is created in respect of expert-report writers.
22. In relation to the judge’s comments at paragraph 49 I would like to note that my previous amendments to my Statements of Grounds have been slight, in contrast to the judge’s claim otherwise, and the amount of volume in the documents has been as a direct reaction to the volume produced by the GMC. Lastly, I contend that I was given insufficient time to plead my case for the costs (I was given a matter of seconds to utter a few brief sentences, although the transcript of this appears somewhat different from what was actually said), and that the five thousand ordered for me to pay is disproportionate in view of the GMC having ignored my two central allegations against Mr Devine.
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19/7/2011: The moustachioed bigwig Sir David Keene has kicked my claim firmly out of court.
Sir David Keene: http://dev.brunel.ac.uk/__data/assets/image/0019/6607/keene250.jpg
Sir Graeme Catto: http://thm-a02.yimg.com/nimage/3ce322ec6b03d01a
Do I sense a conflict of interest? Seperated at birth?
Of course not, just kidding; Sir Keene is a close friend of Tony Blair, his integrity is clearly beyond reproach.
Behold his words of wisdom in all their learned glory:
"REFUSED as being TOTALLY WITHOUT MERIT. The applicant may not request the decision to be reconsidered at an oral hearing.
Reasons:
I agree fully with the reasons given by HH Judge Thornton Q.C. and by Mr Justice King for refusing permission to seek judicial review. There is no basis for questioning Mr Devine's fitness to practice and no evidence whatsoever of misconduct, malice, dishonesty or bad faith on his part. There is no irrationality in the GMC's decisions.
In the circumstance described by Mr Justice King, the award of costs against the applicant was well justified. This decision is final."
Just my luck I didn't get Dame Janet Smith.
So, the GMC commissioned an expert report on a doctor, Mr Nasser, from a doctor, Mr Devine, which managed to completely fudge the central issue in question. Then the GMC refused to investigate the expert by ignoring the crux of my complaint. The courts then rubbished my claim. Meanwhile a new victim of Mr Nasser emails me, distraught at what he's done to her.
And now for my conclusion. Move along, there's nothing to see here, just some misguided litigant in person and his unintelligible ramblings consigned to the wastebin of legal history.
The GMC is obviously free to get away with low-level corruption and hypocrisy unless they are challenged by someone with the considerable funds required for good legal representation. No surprise there, but it's been worthwhile for me to test. There's no doubt I would have failed had I brought a judicial review as a LIP a few years ago against the GMC's failure to investigate Mr Nasser, and that's useful for me to know.
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