GMC Abuse: A personal account of the General Medical Council's abuse of its position.
A Patient's Story of Cosmetic Surgery and the General Medical Council (GMC)
The argument I should have submitted for a judicial review application, despite Richard Furniss's advice:
(1) The GMC's handling of my complaint was unfair at all stages of the screening process. (i) After my initial GMC complaint against Mr Nasser was made on April 9th 2002, I then submitted a detailed Statutory Declaration (admittedly not of a legally proficient standard, which in any case should have been treated as irrelevant for the purposes of my complaint) of 27th May 2002, supported by my accompanying medical records. My father also made a complaint against Mr Nasser of 21st May 2002, corroborating mine. My Statutory Declaration's serious allegations against Mr Nasser include: that his pre-operative letter to Dr Veale of 14th October 2000 (of which I was not made aware) lies that my operation could: "only be achieved by placing external incisions along the shadow lines which demarcate the anatomical sub units of the nose"; that Mr Nasser also lied to me that the incisions in-question were the only way to peform the operation; that Mr Nasser gave
no proper warning or explanation for the incisions; that he put line markings on my nose and photographed them only minutes before the operation in order to falsify my consent; that he took skin from between my eyes without my consent; that after the operation, I discovered, through consultations with leading rhinoplasty surgeons in the US and the UK, that the incisions in-question are unique to Mr Nasser and clinically pointless; and that I later discovered Mr Nasser had lied to his secretary that he had got what he misleadingly described to me as a "new technique" from a leading surgeon in Chicago (whom I later had a revisional operation with, and who vigorously denied ever having seen Mr Nasser's "new technique" before).
(ii) Winnie Walsh (GMC caseworker) sent both doctors copies of my complaint but did not ask either doctor any questions or make any requests for information at any stage, despite some preliminary investigation before screening clearly being appropriate. Mr Nasser's reply, of April 26th 2002, makes no meaningful attempt to clinically justify the incisions in-question (in fact it implies that the purpose of the incisions in-question is clear from the records; yet the GMC's own expert report comments that the reasons for the incisions in-question are not explained by reference to Mr Nasser's records; see (3)). Dr Veale's three letters to the GMC make no direct comment on Mr Nasser's actions; however, there is one point of particular significance in relation to them. Dr Veale sent a letter to the GMC of 30th April 2002, stating: "I have no evidence that Mr Nasser has a ''delusional mentality'' or of incompetence" (sic). He then sent an ammended version of
this letter, dated 14th May 2002, stating: "At that time, I had no evidence that Mr Nasser has a ''delusional mentality'' or was incompetent." Aside from being striking in its intellectual dishonesty; this is a clear indication that Dr Veale - in his capacity as a psychiatrist - was having doubts over Mr Nasser's psychological state, based on the evidence. Neither Ms Walsh nor the screeners appeared to notice this critical piece of evidence.
(iii) Ms Walsh prepared two memorandums, advising against referral of my complaint to the PPC (Preliminary Proceedings Committee) but seeking the screeners' advice. The first memorandum, of 18th July 2002, was for Dr Michael Hudspith (investigation officer at the time) to enable his allocation of my complaint for screening. It ignores my serious allegations against Mr Nasser and draws irrational conclusions as a result. Ms Walsh's second memorandum, of 19th September 2002, was prepared for the purpose of providing the screeners with material to aid in their decision, and is essentially a copy of the first memorandum. The unfair treatment of my complaint by Ms Walsh is evident in these memorandums, and it is clear there was a complete absence of any preliminary investigation.
In addition to her memorandum for the screeners, Ms Walsh completed the front sheet of the SDF (Screening Decision Form), dated 19th September 2002.
At Q5.2b. of the SDF I contend that Ms Walsh was wrong to leave the following decision boxes blank, in outlining the allegations that were to be considered by the screeners:
Dysfunctional conduct: "Abusive behaviour"; Dishonesty: "False claims about the effectiveness of treatment" ; Sub-standard clinical practice and care: "Communication skills" and "Consent issues'".
The "Practising beyond limits of skills or knowledge" and "Sub-standard treatment" boxes were at least marked, which was correct. However, this proves that my most serious allegations were ignored. The boxes ought not to have been a judgment of the truth of my allegations, merely an administrative record of which categories they fell into. Ms Walsh extended her administrative role, in instructing the GMC Screeners, to an illegal filtering and watering-down of my allegations, in her completion of the SDF.
(iv) The medical screener went on to compound this unfair treatment of my complaint.
The SDF provided directions in deciding if an issue of SPM (Serious Professional Misconduct) or SDF (Seriously Deficient Performance) arose:
"SPM is action or inaction by a doctor of a serious kind of which no doctor of reasonable skill and exercising reasonable care would be responsible. The weight of the evidence and the intent of the doctor should not be taken into account when reaching a decision on whether a question of SPM is raised at this stage."
"SDP is normally indicated by a pattern of serious failure to comply with relevant professional Standards. When deciding whether a complaint raises an issue of SDP, evidence before 1 July 1997 cannot be taken into account."
These directions have no bearing on the medical screener's decision processes, as revealed by the SDF:
At Q5.2c., had the medical screener given appropriate consideration to my allegations, I contend that the following boxes ought to have been marked: "A doctor who has a tendency to use inappropriate techniques"; "A lack of basic knowledge/poor judgement"; "A lack of insight"; "Attitude".
At Q.5.3., the medical screener remarks: "No spm or sdp. It is clear the doctor provided services of an appropriate standard, explained possible scarring etc. & was even prepared to see him at his NHS clinic despite difficulties that arose when private fees were not paid."
I contend that the medical screener's opinion that the extensive scarring inflicted by Mr Nasser (in the context of Dr Veale's referral advising against surgery, with a diagnosis of BDD) was of an appropriate standard was irrational (even the GMC's expert report states that Mr Nasser's decision to operate was "clearly wrong"; see (3)). The medical screener's attempt to resolve the conflicts of evidence between myself and Mr Nasser was illegal: the truth is that the scarring was not explained. I also contend that a surgeon arranging for their private patient to be seen on their NHS clinic to fund further cosmetic treatment is a clear breach of NHS funding regulations, and indicates a propensity for deception. In addition, the medical screener's claim that there was "No spm or sdp" was an illegal decision. The test ought to have been whether there were any allegations, not whether the screener judged the allegations to be valid. As a result my serious
allegations were ignored, and there is no comment directly relating to my allegations of deception concerning the legitimacy of the incisions in-question.
I also contend that the medical screener's decisions at the following points were unfair:
At Q5.4, I contend that information ought to have have been sought through "HA/NHS Trust/PCT" and "GMC solictor's investigation".
At Q5.5, I contend that, had my allegations been given appropriate consideration, it would have been appropriate to conclude there was a current risk to the public.
At Q5.6, "Very serious" was appropriate in relation to my allegations, rather than "Not at all serious".
At Q5.7,b., the form states: "There is no tenable basis for taking action because":
i. "The complainant has declined reasonable requests for further information"
ii. "There is no probative evidence to support the allegation(s) nor any prospect of obtaining any"
iii. "The complaint is self-evidently untrue/irrational"
Instead of marking any of these boxes, the medical screener marked: c. "None of the above apply"
As the medical screener did not mark the 'irrational allegations' box - which clearly needed to be marked if my serious allegations were considered to have no rational basis - the screener at least ought to have requested further evidence to support my allegations. I contend that not only was the medical screener's marking of box 'c' - thereby ignoring my complaint's serious allegations - brazenly illegal, it was tantamount to deception.
At Q5.8a, d., the medical screener wrote: "No issues of spm or sdp". As above; this was an illegal decision. It is signed and dated 27th September 2002. This was signed in agreement by the lay screener on 8th October 2002.
On Ms Walsh's second memorandum, of 19th September 2002, the medical screener's note, initialled and dated 27th September 2005, states: "It is clear the patient was given appropriate care by Dr Veale and Mr Nasser. No evidence of substandard care. Draft agreed but I feel resurrection clauses should be ommitted. [X] is acting in this manner partly due to his mental state."
Mr Nasser's insurers have since been forced to pay me a substantial negligence settlement which thoroughly disproves the screener's "appropriate standard" claim. It is therefore surely understandable that Mr Nasser's fees weren't settled. To claim there was no evidence of substandard care was irrational. I also contend that it was a very unjust and irrational logic to use my BDD solely as a device with which to discredit my complaint. To then advise omitting my legal rights based on this prejudice was illegal. The medical screener's comments display an illegal application of the screening role, and discriminate against me in favour of Mr Nasser (a violation of the prohibition of discrimination in article 14 of the Human Rights Act; see (v)).
The lay screener's written contribution to Ms Walsh's memorandum, dated 8th October 2002, states: " ... In the case of Mr Nasser, whilst there may be some dispute about what was actually said during the obtaining of informed consent, I am satisfied having viewed the photographic and other evidence provided by both parties, that there is no indication of spm. I have therefore signed the sdf accordingly - although I wish the [?] clause to be returned to only Mr Nasser."
I contend that to suggest that an issue over informed consent, particularly in my vulnerable condition at the time, could not raise an issue of SPM was irrational. The lay screener clearly took the illegal step of resolving the conflicts of evidence as well. There is no comment on SDP; so the lay screener also took the illegal step of ignoring that part of their job.
(v) I contend that the screening decision was a violation of my right to a fair trial under section 6(1) of the Human Rights Act 1998, and cite the following case law example: R v GMC, ex parte Toth [2000] 1 WLR 2209. A GMC screener's decision not to allow a complaint to be placed before the PCC was held to have breached the complainant's article 6 rights. The initial consideration of cases by a screener was clearly of a fairly basic or narrow kind. This is how Lightman J attempted to contrast the two roles in Toth, at para 14(4):
"The role of the screener is a narrow one. It is to filter out from formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further. For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the PPC need not be followed. The absence of 'need' of which the screener must be satisfied before he can halt the normal course of the complaint to the PCC, connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the PCC would serve no useful purpose. There may be no need because there is nothing which amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or
because the practitioner has already ceased to be registered. Wider questions, as to the prospects of success of the complaint, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further do not lie within the screener’s remit. So far as they may go to the issue whether complaint ought to proceed, they fall within the remit of the PPC. It is not for the screener to arrogate to himself the role of the PPC and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the PPC and weigh up conflicting evidence or judge the prospects of success. He must respect the role assigned by the Rules to the PPC (for which the PPC is armed with investigative powers) and recognise that his duty is only to act as preliminary filter before the more substantive role as filter is exercised by the PPC."
(vi) Ms Walsh's letter, of 9th October 2002, communicating to me the screeners' rejection of my complaint, states: " ... having studied the case papers the members can find nothing to suggest that Mr Nasser carried out any procedure other than that intended to alter the size and shape of your nose, nor are they persuaded that the scarring that you experienced following the operation occurred as a result of carelessness or incompetence on his part. They also note that prior to the operation, Mr Nasser discussed the operation with you and took photographs of your face showing ink marks along the proposed scars lines and they note that you signed a consent form confiriming that the procedure had been fully explained to you."
I contend this letter further reveals that the screening decision was manifestly unfair and illegal. It was not the screeners' job to be "persuaded" by my allegations, nor to resolve the conflicts of evidence between Mr Nasser and myself. The screeners' decision to reject my complaint "on the information before them" was illegal.
Ms Walsh's letter to Mr Nasser of the same date again reveals the illegality of the screeners' rejection of my complaint: " ... However, having studied the case papers, the members can find nothing to suggest that you carried out any procedure other than that intended to alter the size and shape of Mr [X]'s nose, nor that the subsequent scarring was solely as a result of your operation on Mr [X] or ocurred as a result of carelessness or incompetence on your part. They also note that prior to the operation, Mr [X] signed a consent from confirming that the procedure had been fully explained to him. " The evidence was embellished and steered, with prejudicial bias, in Mr Nasser's favour.
(2) I contend that my decision to seek new evidence after the screening decision was reasonable, and that Mr Goldin's letter to the GMC, of 21st September 2004, was treated as new information by the GMC (under Rule 14 of the pre-1st November 2004 GMC Rules), although this was done in an inconsistent and unfair manner.
Ms Walsh's letter, of 9th October 2002, communicating to me the screeners' rejection of my complaint, states: " ... we will keep your complaint on file for three years, and may review it if we receive further complaints against Mr Nasser during that time." Her letter to Mr Nasser of the same date states: "I have also been asked to explain that under our statutory rules the GMC has discretion to re-consider Mr [X]'s complaint in the light of any further information we may receive about you. I should however emphasise that the case would only be re-considered if we were to receive any further complaint or information about you within the next two years, in cases of serious professional misconduct, or three years, in cases of seriously deficient performance." I contend that it was a reasonable step for me to seek this information, rather than judicially review the screening decision, as my clinical negligence case against Mr Nasser was already under way
with Alexander Harris solicitors when the screeners rejected my complaint.
The GMC's power to reopen a previous complaint, under Rule 14 of the pre-1st November 2004 GMC Rules, on receipt of "information or a complaint" constituting a "fresh allegation" against a doctor (although the "fresh allegation" quote is only taken from the heading for the Rule 14 clause and does not necessarily strictly apply to the words "or receives information or a complaint" within it), within two years of the previous complaint against the same doctor being dismissed by a medical screener, was discretional; but this discretion is subject to scrutiny by Court. I contend that the serious allegations outlined in Mr Goldin's initial letter to the GMC, of 21st September 2004, were sufficiently cogent to warrant a reopening of my complaint, under Rule 14. That Mr Goldin had written, in his capacity as an acknowledged expert, was enough to give my complaint's serious allegations a new, valid and unconsidered perspective; and, in this sense, his complaint
was in itself a "fresh" allegation. He also notes: " ... if Mr Nasser continues to practise in this manner, many of his patients would be at serious risk of being harmed." The screeners' rejection of my complaint ought to have been contrasted with Mr Goldin's letter and seen to be self-evidently flawed. However, the GMC's disregard for fairness towards me is further revealed in Ms Walsh's letter to Mr Nasser, of 9th October 2002, detailing Rule 14 "in the interests of fairness"; while, by contrast, the lack of reference to Rule 14 in Ms Walsh's letter to me, of 9th October 2002, complied with the medical screener's illegal direction on the SDF that "resurrection clauses" were to be "omitted". It is therefore reasonable to suspect that this illegal direction impacted the GMC's subsequent failure to reopen my complaint on receipt of Mr Goldin's evidence.
I contend that Mr Tim Cox-Brown's decision in his processing form, of 4th October 2004, on receipt of Mr Goldin's letter and directing it to be closed, was wrong. As his note on the form explains: he seemed to think that the GMC were "unable" to reopen my complaint because (his note claims) Mr Goldin's allegations had in effect already been considered when my complaint was screened out. If my complaint had been reopened, as was required by Rule 14, then, contrary to the medical screener's note of 27th September 2002 (on Ms Walsh's memorandum), claiming that there was "no evidence" of SPM or SDP (as opposed to there being no allegations), it ought to have been recognised by the GMC that there clearly now was evidence - in the form of serious allegations by an acknowledged expert in the field.
On 19th November 2002, Andy Laing (Investigation Manager at the time) replied to my letter of 10th October 2004, which was sent in parrallel terms to Mr Goldin's letter and explained that I had received a 30 000 pound negligence settlement from Mr Nasser's insurers. This was clearly in itself fresh information which disproved the medical screener's "appropriate standard" claim and ought to have provided further grounds for reopening my complaint. However, Mr Laing claimed that the GMC were unable to reopen my case, citing the same reasons as Mr Cox-Brown. I contend that this decision was also wrong.
As a result of my MP's letter of 16th November 2004, requesting that the GMC reconsider my case in light of Mr Goldin's serious allegations, Jackie Smith (Head of Investigation) wrote to my MP, on 21st December 2004, agreeing to review Mr Goldin's letter, of 21st September 2004. If it was not for this intervention by my MP, the GMC would have had no intention to give Mr Goldin's letter any real thought.
Made in response to my MP's request, Peter Lynn's memorandums (of 13th and 30th December 2004) reveal he considered that all four previous complaints against Mr Nasser (made before mine) were relevant grounds to be included in a review of Mr Goldin's initial letter to the GMC (the redacted information in the 13th December memorandum would likely refer to Mr Nasser's complaint history - which was mistakenly disclosed to me when I received an unredacted copy of the 30th December memorandum). In Mr Lynn's memorandum of 13th December 2002, he informed Paul Philip (Director of Fitness to Practise) that he was recommending a review by a "case examiner". However, Mr Lynn's reasoning to Mr Philip was that the screening decision was "correct and defensible", and that only the "correspondence since the screening decision" should be reviewed: "in order to decide that there is nothing that could be regarded as 'new' here that we should be exploring further." This
despite noting that a review was appropriate precisely because Mr Goldin's letter "does raise concern". As with Mr Cox-Brown's and Mr Laing's decisions referred to above, I contend that this was an irrational consideration of Mr Goldin's evidence and a misapplication of Rule 14. My case warranted reopening in light of Mr Goldin's evidence, and that ought to have included the reconsideration of my complaint's rejection by the screeners. In fact, Mr Lynn's implied direction that the decision would conclude there was nothing new was an irrational pre-empting of the review, and further indicates that the proposed review was primarily an expedient fudging of my MP's request that a review be undertaken. In Mr Lynn's later memorandum of 30th December 2004, to Mr Laing, he notes that a review was appropriate in light of: " ... Mr Goldin's letter, which I feel indicates there is an issue to be looked at here, and that Mr Goldin's letter is effectively new
information." At this point, Mr Lynn is effectively admitting that Mr Goldin's letter ought to apply to Rule 14.
On 21st January 2005 I wrote to Ms Smith informing her of my intention to supply an independent report from Mr Goldin, to be included in the GMC's review of Mr Goldin's letter of 21st September 2004. I contend that the GMC ought to have commissioned a report themselves, perhaps after asking Mr Nasser a few questions first, but that it was reasonable to commission an independent report myself in the absence of the GMC fulfilling their duty. Mr Laing's letter to me of 4th February 2005 explained that he would wait for receipt of Mr Goldin's report, to be included in the GMC's review of Mr Goldin's letter; and Ms Smith's letter to my MP of 15th February 2005 communicated the same message.
Mr Goldin's report took longer than expected (due to him being out of the country for extended periods); so on 2nd April 2005 I wrote to Mr Laing explaining that there had been a delay. Mr Laing's reply of 8th April 2005 states: "As indicated in previous correspondence to both yourself and your MP, we will continue to consider fresh information at any point should you wish to provide it." Mr Laing's letter repeated the incorrect decision first taken in Mr Cox-Brown's processing form of 4th October 2004, but it was nonetheless clear in also repeating that Mr Goldin's report would be considered when ready, as previously agreed, and made no point at all about delay.
I sent Mr Goldin's report to the GMC on 29th July 2005. Mr Goldin's report reveals a very serious discrepancy between his expert opinion and the opinion of the medical screener, who very likely knew virtually nothing about the technicalities of rhinoplasty. (It was mistakenly revealed to me in an unredacted record supplied by the GMC that the medical screener was the old age psychiatrist Dr Pearl Hettiaratchy.)
Anna Neill's (Investigation Manager) letter, of 23rd August 2005, rejected Mr Goldin's report, stating: "... the GMC can only reconsider re-opening a complaint if we receive new information relating to the complaint which significantly alters the allegations originally considered by the screeners; or if we receive fresh allegations about the doctor. ...The screeners who considered your original complaint did not agree that the care given to you was substandard and therefore there are no grounds to reconsider this matter." Mr Goldin's report plainly does significantly alter the serious allegations, not only because they are given a new and detailed perspective by Mr Goldin's expert opinion, but because they were ignored by the screeners in their illegal rejection of my complaint; had the screeners been in receipt of Mr Goldin´s evidence, even they could not have ignored his expert opinion and its extreme contrast to their own opinion. Just as Mr Goldin's
initial letter to the GMC ought to have qualified as fresh information under Rule 14, I contend that Mr Goldin's report also ought to have qualified for review because the GMC had agreed to extend their review of Mr Goldin's initial letter to encompass Mr Goldin's report.
I therefore requested a review by the GMC President, Sir Professor Graeme Catto, whom I managed to speak with on the telephone shortly after receiving Ms Neill's letter. On 16th September 2005, Ms Smith wrote to me communicating the result of this review: " ... the original decision taken by the screeners could only be reviewed in the light of new and fresh information or if there had been some procedural irregularity. Neither applies in this case. As such, the original decision stands. ... your complaint has been thoroughly considered on more than one occasion." (Ms Smith later contradicted this last sentence in her letter to my MP of 11th July 2006; see (3).)
As Ms Neill's and Ms Smith's letters rejected Mr Goldin's evidence because they claimed that it was not fresh information and therefore did not qualify for review, the result was that the GMC had effectively reneged on their previous decision to undertake a substantive review of Mr Goldin's evidence. A review remained necessary in accordance with Rule 14, dating from the GMC's receipt of Mr Goldin's initial letter of 21st September 2004. Ms Neill and Ms Smith attempted to justify their inaction with an over-strict interpretation and embellishment of Rule 14, which is fundamentally incompatible with the GMC's statutory duty to protect patients.
Even despite the GMC's decision to capitulate to pressure from my MP and arrange a more thorough review of Mr Goldin's letter, and then report, by a case examiner - although I contend that the proposed review ought to have included the reopening of my complaint - there is no evidence (redacted or otherwise) to indicate that the directions in Mr Lynn's memorandums were properly followed and any substantive review, of either Mr Goldin's letter or his subsequent report, took place at all.
The GMC were appearing to comply with my MP's request to re-consider Mr Goldin's letter (thereby acting in the direction of compliance with their statutory duty under Rule 14), and also then to extend the review to encompass Mr Goldin's report when it was ready, while simultaneously having no intention of undertaking an appropriately substantive review of Mr Goldin's evidence; and particularly not in context with my complaint, as was required by Rule 14. I contend that the GMC's decision processes were inconsistent throughout their consideration of Mr Goldin's evidence, and that their failure to reopen my complaint under Rule 14 was unfair.
(3) On receiving Ms Smith's letter of 16th September 2005, I initiated judicial review proceedings against the GMC, through a solicitor with Hodge, Jones and Allen. On seeking advice from their counsel, the GMC reneged on their position and, again, in effect agreed to consider Mr Goldin's evidence in the context of it being new information. After obtaining even further evidence from Mr Goldin the GMC undertook a Presidential review, which the President was to eventually renege on. I contend that the GMC were in effect treating Mr Goldin's initial letter to the GMC, of 21st September 2004, as new information right up to the decision in the President's review, on 26th August 2006. I also contend that the President's claim that he has no power to review my case is incompatible with the GMC's statutory duty to protect patients, and is an unfair discontinuation of the power to reopen complaints supplied by Rule 14 of the old GMC Rules. [* See end of (3) for
the alternative legal option.]
On 7th October 2005, my Hodge, Jones and Allen solicitor, Nina Ali, served a judicial review notice on the GMC: noting that I had received 30 000 pounds compensation from Mr Nasser's insurers, and asserting that the GMC's refusal to reopen my case on receipt of Mr Goldin's evidence was irrational; in breach of the GMC's duty to protect patients; and a procedural impropriety - in breach of the common law rules of natural justice or procedural fairness (Ridge v Baldwin 1964 A.C.40).
On 27th October 2005, after consulting their counsel, the GMC replied, through the GMC solicitor Janet Gray, claiming that their refusal to reopen my complaint is "not a challengeable decision" and that the screening decision should have been challenged: "The GMC has reviewed the correspondence but as no new allegations or new information was provided, in accordance with the Rules the matter was not re-opened. The proposed Defendant contents [sic] that this correspondence is not a fresh decision." For the reasons detailed at (2) I contend that the GMC's behaviour was not "in accordance with the Rules". I contend that my seeking of new information after the screening decision was a reasonable step and that the GMC's failure to properly and conscientiously apply Rule 14, of the pre-1st November 2004 Rules, is a challengeable decision. Ms Gray's letter continues: "However, on further consideration and legal advice, whilst Mr Goldin refers to the same
allegations already considered by the GMC he provides some new information and a greater analysis of the allegations against Mr Nasser's practice. ... The proposed defendant will now review the new material, i.e the evidence of Mr Goldin, to consider whether the complaint should be reopened. In those circumstances, the proposed Defendant does not believe a judicial review is necessary or appropriate." Therefore the GMC were in effect still continuing to treat Mr Goldin's evidence as new information.
Mr Goldin then supplied extra details about his CV and added academic references to his report, in response to Ms Gray's requests. Her letters of 22nd December 2005, in particular, set up flawed, irrelevant and illegitimate obstructions, and her attitude to Mr Goldin was, in places, little short of harassment (see, for example, the rather petty comments on his CV). There is no obligation on a complainant to provide a report at all. The independent report from an acknowledged expert in the field goes far further than anything needed by the GMC to appreciate that serious information has been supplied that requires further investigation. In fact, as I detailed at (2), I contend that sufficient information was supplied to the GMC with Mr Goldin's initial letter of 21st September 2004, and that the GMC's proposed review of this letter was treated as being in accordance with Rule 14 of the old rules from the point they received it. My commissioning of Mr
Goldin's report, to aid in the GMC's review of his initial letter, was done in the absence of the GMC fulfilling their duty to commission one. It is for the GMC to carry out whatever investigations are necessary, including commissioning any relevant reports. Ms Gray's suggestion that the GMC was "in the hands of" Mr Goldin was wrong, and was simply an abdication of responsibility. It is not the case that before the GMC acts, it is entitled to require the complainant to provide an extremely detailed expert’s report citing all relevant medical literature and professional guidelines - all at the complainant’s or the expert’s expense.
On 17th March 2006, Ms Gray sent me a letter stating that the GMC have "no power" to reopen my complaint, as the new GMC Rules have no provision to reopen complaints rejected by the now defunct screening process, which was only in effect before the 1st November 2004 Rules came into place. I contend that the GMC ought to have acknowledged this unfair and discontinuous aspect of the new GMC Rules, in relation to Rule 14 of the old rules; ought to have acknowledged their clear errors in handling my case; ought to have recognised that they had in effect been treating my complaint as reopened since receipt of Mr Goldin's initial letter; and ought to have acknowledged that my case ought to be applicable to the President's review in the new rules, for the safety of Mr Nasser's patients. Instead, the GMC fudged their position: Ms Gray's letter claimed that "without prejudice" to the GMC's view that they had no power to reopen my complaint - which plainly was a
prejudiced position - and in case that view was wrong, the President had decided to review my case.
Ms Gray's letter, of 17th March 2006, also states: " ... Mr Goldin has provided various articles and references in support of his opinion and this supplementary material does statisfy the test in Rule 12 (2) of the Fitness to Practise Rules ... the additional material satisfies this Rule because it is new and sufficiently cogent to merit a review; clearly this was not available when the screeners made the original decision." Aside from the fact that further evidence would have been available at the screening stage or, failing that, on receipt of Mr Goldin's initial letter, had the GMC done their job properly and commissioned a report in order to enable a fair consideration of my case; Ms Gray's assertion that only the academic references had satisfied the test of new information (a test common to both Rule 14 of the old rules and the grounds for review available to the President in the 1st November 2004 Rules) was yet another over-strict and irrational
consideration of Mr Goldin's evidence. It also contradicted the GMC's own previous assessments of Mr Goldin's evidence as new information; both in Mr Lynn's memorandums and in Ms Gray's letter, of 27th October 2005, in response to my initial judicial review action. However, Ms Gray's letter continued: " ... It would be quite wrong to launch any legal action before the conclusion of the review and before any consequential reconsideration." There remained the possibility that the GMC would acknowledge the serious nature of the allegations against Mr Nasser, and I was compelled to wait for them to complete their consideration of Mr Goldin's evidence and any resulting investigation.
Ms Gray's letter to me of 19th May 2006 reveals that my complaint is not out of time as the five year time limit applies from the events in-question to the time when the GMC first become aware of them, and that the GMC received even Mr Goldin's report within five years of Mr Nasser's operation. Ms Gray asked me to "identify and explain the source of the underlying power" which enables the GMC to investigate, with reference to their statutory rules. The GMC were aware that my Hodge, Jones and Allen solicitor was not currently acting for me, and would only have the funding to do so if I brought another judicial review. The GMC were also aware that Mr Nasser had access to a solictor throughout the President's proposed review. I am not a lawyer and ought not to have been expected to do the GMC's job for them by establishing if there were technical clauses in their rules which allowed them to investigate - particularly not in the absence of my access to legal
advice at that point. That the GMC asked me for my legal interpretation of their rules at this stage further reveals the disregard they had for the review's clear imbalances of fairness. Nonetheless, I reminded them that Mr Goldin's initial letter had been applicable to Rule 14 of the old GMC Rules, and also explained that the GMC have an overriding statutory duty to protect patients which should rightly cause Professor Catto to apply my case to his power for review in the new GMC Rules.
Jackie Smith's reply, of 11th July 2006, to another of my MP's letters requesting that the GMC investigate my complaint, remarks: "We do have Mr Goldin's report, which we received from Mr [X] and which we have had for some time now. Mr Goldin's report is detailed and needs careful consideration and because it is, we have taken longer than we had hoped to make a decision about whether we can reopen the complaint against Mr Nasser ... Professor Catto will be in a position to let Mr [X] know the outcome by Friday 4 August 2006." On 25th July 2006, I unexpectedly received a new independent surgeon report from the GMC. My reply to Ms Gray explained that it was unreasonable to require my response to Mr Devine's report within seven days, not least because I had been given no warning that the GMC would be producing one.
On 18th August 2006, I sent the GMC my response to Mr Devine's report. Mr Devine's report is based on the flawed premise that the incisions in-question must have served a legitimate purpose - even though he has no explanation for them. However, there is no reference to the content of Mr Goldin's report and it effectively leaves more questions than answers in trying to downplay the incisions in-question - which I maintain are by far the most serious aspect of Mr Nasser's treatment of me. It is suspicious that this expert was chosen by the GMC: his enclosed CV makes no mention of any training, qualifications or experience as an expert witness. It is doubtful that he acts as an expert witness in other GMC cases. It is likely that their secrecy in obtaining the report had partly been to prevent me from requesting to see Mr Devine in person or from enquiring about his suitability as an expert witness. Ms Gray's letters of 22nd December 2005, to myself and Mr
Goldin, criticised Mr Goldin's report and the delays incurred in obtaining Mr Goldin's evidence; yet the time it took the GMC to obtain their own report and its legal deficiencies as an expert-witness report reveal further hypocrisy.
On 25th August 2006, Ms Smith wrote communicating the decision in the President's review, citing "no power": "regardless of the strength or weakness of the fresh material." Not only had the President's original review timetable (detailed in Ms Gray's letter to me of 17th March 2006) proved worthless over the protracted period of his proposed review, but the review itself was not carried out. The lack of a transitional provision in the President's power for review in the new GMC Rules, in relation to Rule 14 of the old GMC Rules, is unfair and unjust (and its seems was essentially an oversight by the Privy Council in drafting the new rules); and the GMC have an overriding statutory duty to protect patients which ought to have caused Professor Catto to apply my case to his power for review in the new rules.
However, it appears that the GMC's intended effect of Mr Devine's report was to whitewash the allegations before following up with their refusal to investigate regardless of the evidence. The President's observation that "the passage of so much time means that memories will inevitably have faded" fails to grasp that the fundamental allegations concern what was done, that is: the legitimacy of the incisions in-question (which includes the evidence of dishonesty in Mr Nasser's pre-operative letter to Dr Veale); rather than what was said, which, it is true, cannot be fully verified at this stage. In the context of the allegations potentially being proven, the possibility that the incisions in-question were covered by informed consent would been negated, as it is alleged that it was a clinically pointless confidence trick amounting to an assault - to which I was particularly vulnerable at the time.
[* Or the alternative legal argument is that my case should have been reopened and dealt with under the old rules even though the new rules had come into place, as other cases (initiated before the new rules came into place) continue to be heard under the old rules at the GMC; or perhaps my case should have been reopened under the old rules and then handled under the new rules. Whichever option is more legally appropriate, I believe that a judge would have probably found in my favour had I got to see one. See Ms Gray's letter to me of 17/3/06 here: http://www.flickr.com/photos/bddstory/ to witness the GMC's obfuscation in full effect.]
(4) On 3rd October 2006, my Hodge, Jones and Allen solicitor sent the GMC a judicial review notice. On 17th October 2006, my solicitor received an aggressive letter signed by the GMC solicitor Janet Gray. The GMC threatened to seek costs if I applied for a judicial review. At this point I encountered problems obtaining legal funding and, shortly following receipt of Mr Furniss's report, the three month time limit proceeding from the decision in the President's review, of 25th August 2006, expired on 25th November 2006.
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Rule 14 of the old GMC Rules:
Fresh allegation as to conviction or conduct [The word "fresh" seems open to interpretation.]
14.(1) This rule applies where:
(a) in any case relating to conviction the Committee determine that no inquiry shall be held; or
(b) in any case relating to conduct
(i) under rule 6(3) the medical screener decides that no reference to the Committee is to be made; or
(ii) the Committee determine that no reference for inquiry shall be made,
and the Registrar, at any time within the two years following that determination or decision, receives information that the practitioner has been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner’s conduct.
(2) Where this rule applies, the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the later conviction, information or complaint.
(3) In any case where the decision under paragraph (1)(b)(i) was made before 3rd August 2000, the reference there to the medical screener shall be read as a reference to the President.
Rule 12 of the new GMC Rules:
Review of decisions
12. - (1) Subject to paragraph (2), the following decisions may be reviewed by the President -
(a) a decision not to refer an allegation to a FTP Panel; [The decision for my complaint was not to refer to the Preliminary Proceedings Committee; this stage was scrapped with the introduction of the new rules.]
(b) a decision to issue a warning in accordance with rule 11(2), 11(4) or 11(6); or
(c) a decision to cease consideration of an allegation upon receipt of undertakings from the practitioner in accordance with rule 10(3).
(2) Subject to paragraph (3), the President shall not review a decision specified in paragraph (1) unless he considers that there is new evidence or information which makes such review -
(a) necessary for the protection of the public;
(b) necessary for the prevention of injustice to the practitioner; or
(c) otherwise necessary in the public interest.
(3) The President may review a decision specified in paragraph (1) where he receives information that the General Council has erred in its administrative handling of the case and he is satisfied that it is necessary in the public interest to do so.
(4) Where the President decides to review a decision specified in paragraph (1), the Registrar shall -
(a) inform the practitioner and the maker of the allegation (if any) of the decision to review;
(b) inform the practitioner and the maker of the allegation (if any) of any new evidence or information and, where appropriate, provide them with copies of any new evidence received; and
(c) seek representations from the practitioner and the maker of the allegation (if any) regarding the review of the decision.
(5) Where the President decides to review a decision specified in paragraph (1), he may -
(a) determine that the original decision should stand;
(b) refer the allegation for consideration under rule 8; or
(c) refer the allegation for consideration under rule 10(2).
(6) Where the President has reviewed a decision specified in paragraph (1), the Registrar shall notify -
(a) the practitioner;
(b) the maker of the allegation (if any); and
(c) any other person he considers has an interest in receiving notification,
in writing, as soon as reasonably practicable, of the President's decision, together with his reasons for that decision.
(1) The GMC's handling of my complaint was unfair at all stages of the screening process. (i) After my initial GMC complaint against Mr Nasser was made on April 9th 2002, I then submitted a detailed Statutory Declaration (admittedly not of a legally proficient standard, which in any case should have been treated as irrelevant for the purposes of my complaint) of 27th May 2002, supported by my accompanying medical records. My father also made a complaint against Mr Nasser of 21st May 2002, corroborating mine. My Statutory Declaration's serious allegations against Mr Nasser include: that his pre-operative letter to Dr Veale of 14th October 2000 (of which I was not made aware) lies that my operation could: "only be achieved by placing external incisions along the shadow lines which demarcate the anatomical sub units of the nose"; that Mr Nasser also lied to me that the incisions in-question were the only way to peform the operation; that Mr Nasser gave
no proper warning or explanation for the incisions; that he put line markings on my nose and photographed them only minutes before the operation in order to falsify my consent; that he took skin from between my eyes without my consent; that after the operation, I discovered, through consultations with leading rhinoplasty surgeons in the US and the UK, that the incisions in-question are unique to Mr Nasser and clinically pointless; and that I later discovered Mr Nasser had lied to his secretary that he had got what he misleadingly described to me as a "new technique" from a leading surgeon in Chicago (whom I later had a revisional operation with, and who vigorously denied ever having seen Mr Nasser's "new technique" before).
(ii) Winnie Walsh (GMC caseworker) sent both doctors copies of my complaint but did not ask either doctor any questions or make any requests for information at any stage, despite some preliminary investigation before screening clearly being appropriate. Mr Nasser's reply, of April 26th 2002, makes no meaningful attempt to clinically justify the incisions in-question (in fact it implies that the purpose of the incisions in-question is clear from the records; yet the GMC's own expert report comments that the reasons for the incisions in-question are not explained by reference to Mr Nasser's records; see (3)). Dr Veale's three letters to the GMC make no direct comment on Mr Nasser's actions; however, there is one point of particular significance in relation to them. Dr Veale sent a letter to the GMC of 30th April 2002, stating: "I have no evidence that Mr Nasser has a ''delusional mentality'' or of incompetence" (sic). He then sent an ammended version of
this letter, dated 14th May 2002, stating: "At that time, I had no evidence that Mr Nasser has a ''delusional mentality'' or was incompetent." Aside from being striking in its intellectual dishonesty; this is a clear indication that Dr Veale - in his capacity as a psychiatrist - was having doubts over Mr Nasser's psychological state, based on the evidence. Neither Ms Walsh nor the screeners appeared to notice this critical piece of evidence.
(iii) Ms Walsh prepared two memorandums, advising against referral of my complaint to the PPC (Preliminary Proceedings Committee) but seeking the screeners' advice. The first memorandum, of 18th July 2002, was for Dr Michael Hudspith (investigation officer at the time) to enable his allocation of my complaint for screening. It ignores my serious allegations against Mr Nasser and draws irrational conclusions as a result. Ms Walsh's second memorandum, of 19th September 2002, was prepared for the purpose of providing the screeners with material to aid in their decision, and is essentially a copy of the first memorandum. The unfair treatment of my complaint by Ms Walsh is evident in these memorandums, and it is clear there was a complete absence of any preliminary investigation.
In addition to her memorandum for the screeners, Ms Walsh completed the front sheet of the SDF (Screening Decision Form), dated 19th September 2002.
At Q5.2b. of the SDF I contend that Ms Walsh was wrong to leave the following decision boxes blank, in outlining the allegations that were to be considered by the screeners:
Dysfunctional conduct: "Abusive behaviour"; Dishonesty: "False claims about the effectiveness of treatment" ; Sub-standard clinical practice and care: "Communication skills" and "Consent issues'".
The "Practising beyond limits of skills or knowledge" and "Sub-standard treatment" boxes were at least marked, which was correct. However, this proves that my most serious allegations were ignored. The boxes ought not to have been a judgment of the truth of my allegations, merely an administrative record of which categories they fell into. Ms Walsh extended her administrative role, in instructing the GMC Screeners, to an illegal filtering and watering-down of my allegations, in her completion of the SDF.
(iv) The medical screener went on to compound this unfair treatment of my complaint.
The SDF provided directions in deciding if an issue of SPM (Serious Professional Misconduct) or SDF (Seriously Deficient Performance) arose:
"SPM is action or inaction by a doctor of a serious kind of which no doctor of reasonable skill and exercising reasonable care would be responsible. The weight of the evidence and the intent of the doctor should not be taken into account when reaching a decision on whether a question of SPM is raised at this stage."
"SDP is normally indicated by a pattern of serious failure to comply with relevant professional Standards. When deciding whether a complaint raises an issue of SDP, evidence before 1 July 1997 cannot be taken into account."
These directions have no bearing on the medical screener's decision processes, as revealed by the SDF:
At Q5.2c., had the medical screener given appropriate consideration to my allegations, I contend that the following boxes ought to have been marked: "A doctor who has a tendency to use inappropriate techniques"; "A lack of basic knowledge/poor judgement"; "A lack of insight"; "Attitude".
At Q.5.3., the medical screener remarks: "No spm or sdp. It is clear the doctor provided services of an appropriate standard, explained possible scarring etc. & was even prepared to see him at his NHS clinic despite difficulties that arose when private fees were not paid."
I contend that the medical screener's opinion that the extensive scarring inflicted by Mr Nasser (in the context of Dr Veale's referral advising against surgery, with a diagnosis of BDD) was of an appropriate standard was irrational (even the GMC's expert report states that Mr Nasser's decision to operate was "clearly wrong"; see (3)). The medical screener's attempt to resolve the conflicts of evidence between myself and Mr Nasser was illegal: the truth is that the scarring was not explained. I also contend that a surgeon arranging for their private patient to be seen on their NHS clinic to fund further cosmetic treatment is a clear breach of NHS funding regulations, and indicates a propensity for deception. In addition, the medical screener's claim that there was "No spm or sdp" was an illegal decision. The test ought to have been whether there were any allegations, not whether the screener judged the allegations to be valid. As a result my serious
allegations were ignored, and there is no comment directly relating to my allegations of deception concerning the legitimacy of the incisions in-question.
I also contend that the medical screener's decisions at the following points were unfair:
At Q5.4, I contend that information ought to have have been sought through "HA/NHS Trust/PCT" and "GMC solictor's investigation".
At Q5.5, I contend that, had my allegations been given appropriate consideration, it would have been appropriate to conclude there was a current risk to the public.
At Q5.6, "Very serious" was appropriate in relation to my allegations, rather than "Not at all serious".
At Q5.7,b., the form states: "There is no tenable basis for taking action because":
i. "The complainant has declined reasonable requests for further information"
ii. "There is no probative evidence to support the allegation(s) nor any prospect of obtaining any"
iii. "The complaint is self-evidently untrue/irrational"
Instead of marking any of these boxes, the medical screener marked: c. "None of the above apply"
As the medical screener did not mark the 'irrational allegations' box - which clearly needed to be marked if my serious allegations were considered to have no rational basis - the screener at least ought to have requested further evidence to support my allegations. I contend that not only was the medical screener's marking of box 'c' - thereby ignoring my complaint's serious allegations - brazenly illegal, it was tantamount to deception.
At Q5.8a, d., the medical screener wrote: "No issues of spm or sdp". As above; this was an illegal decision. It is signed and dated 27th September 2002. This was signed in agreement by the lay screener on 8th October 2002.
On Ms Walsh's second memorandum, of 19th September 2002, the medical screener's note, initialled and dated 27th September 2005, states: "It is clear the patient was given appropriate care by Dr Veale and Mr Nasser. No evidence of substandard care. Draft agreed but I feel resurrection clauses should be ommitted. [X] is acting in this manner partly due to his mental state."
Mr Nasser's insurers have since been forced to pay me a substantial negligence settlement which thoroughly disproves the screener's "appropriate standard" claim. It is therefore surely understandable that Mr Nasser's fees weren't settled. To claim there was no evidence of substandard care was irrational. I also contend that it was a very unjust and irrational logic to use my BDD solely as a device with which to discredit my complaint. To then advise omitting my legal rights based on this prejudice was illegal. The medical screener's comments display an illegal application of the screening role, and discriminate against me in favour of Mr Nasser (a violation of the prohibition of discrimination in article 14 of the Human Rights Act; see (v)).
The lay screener's written contribution to Ms Walsh's memorandum, dated 8th October 2002, states: " ... In the case of Mr Nasser, whilst there may be some dispute about what was actually said during the obtaining of informed consent, I am satisfied having viewed the photographic and other evidence provided by both parties, that there is no indication of spm. I have therefore signed the sdf accordingly - although I wish the [?] clause to be returned to only Mr Nasser."
I contend that to suggest that an issue over informed consent, particularly in my vulnerable condition at the time, could not raise an issue of SPM was irrational. The lay screener clearly took the illegal step of resolving the conflicts of evidence as well. There is no comment on SDP; so the lay screener also took the illegal step of ignoring that part of their job.
(v) I contend that the screening decision was a violation of my right to a fair trial under section 6(1) of the Human Rights Act 1998, and cite the following case law example: R v GMC, ex parte Toth [2000] 1 WLR 2209. A GMC screener's decision not to allow a complaint to be placed before the PCC was held to have breached the complainant's article 6 rights. The initial consideration of cases by a screener was clearly of a fairly basic or narrow kind. This is how Lightman J attempted to contrast the two roles in Toth, at para 14(4):
"The role of the screener is a narrow one. It is to filter out from formally correct complaints, not those which in his view ought not to proceed further, but those which he is satisfied (for some sufficient and substantial reason) need not proceed further. For this purpose he must be satisfied of a negative, namely that the normal course of the complaint proceeding to the PPC need not be followed. The absence of 'need' of which the screener must be satisfied before he can halt the normal course of the complaint to the PCC, connotes the absence of any practical reason for the complaint so proceeding and that for the complaint to proceed to the PCC would serve no useful purpose. There may be no need because there is nothing which amounts to a complaint; because the formal verification is lacking; because the matters complained of (even if established) cannot amount to serious professional misconduct; because the complainant withdraws the complaint; or
because the practitioner has already ceased to be registered. Wider questions, as to the prospects of success of the complaint, as to whether the complainant is acting oppressively or as to the justice of the investigation proceeding further do not lie within the screener’s remit. So far as they may go to the issue whether complaint ought to proceed, they fall within the remit of the PPC. It is not for the screener to arrogate to himself the role of the PPC and decide whether the complaint ought to proceed further, still less to arrogate to himself the role of the PPC and weigh up conflicting evidence or judge the prospects of success. He must respect the role assigned by the Rules to the PPC (for which the PPC is armed with investigative powers) and recognise that his duty is only to act as preliminary filter before the more substantive role as filter is exercised by the PPC."
(vi) Ms Walsh's letter, of 9th October 2002, communicating to me the screeners' rejection of my complaint, states: " ... having studied the case papers the members can find nothing to suggest that Mr Nasser carried out any procedure other than that intended to alter the size and shape of your nose, nor are they persuaded that the scarring that you experienced following the operation occurred as a result of carelessness or incompetence on his part. They also note that prior to the operation, Mr Nasser discussed the operation with you and took photographs of your face showing ink marks along the proposed scars lines and they note that you signed a consent form confiriming that the procedure had been fully explained to you."
I contend this letter further reveals that the screening decision was manifestly unfair and illegal. It was not the screeners' job to be "persuaded" by my allegations, nor to resolve the conflicts of evidence between Mr Nasser and myself. The screeners' decision to reject my complaint "on the information before them" was illegal.
Ms Walsh's letter to Mr Nasser of the same date again reveals the illegality of the screeners' rejection of my complaint: " ... However, having studied the case papers, the members can find nothing to suggest that you carried out any procedure other than that intended to alter the size and shape of Mr [X]'s nose, nor that the subsequent scarring was solely as a result of your operation on Mr [X] or ocurred as a result of carelessness or incompetence on your part. They also note that prior to the operation, Mr [X] signed a consent from confirming that the procedure had been fully explained to him. " The evidence was embellished and steered, with prejudicial bias, in Mr Nasser's favour.
(2) I contend that my decision to seek new evidence after the screening decision was reasonable, and that Mr Goldin's letter to the GMC, of 21st September 2004, was treated as new information by the GMC (under Rule 14 of the pre-1st November 2004 GMC Rules), although this was done in an inconsistent and unfair manner.
Ms Walsh's letter, of 9th October 2002, communicating to me the screeners' rejection of my complaint, states: " ... we will keep your complaint on file for three years, and may review it if we receive further complaints against Mr Nasser during that time." Her letter to Mr Nasser of the same date states: "I have also been asked to explain that under our statutory rules the GMC has discretion to re-consider Mr [X]'s complaint in the light of any further information we may receive about you. I should however emphasise that the case would only be re-considered if we were to receive any further complaint or information about you within the next two years, in cases of serious professional misconduct, or three years, in cases of seriously deficient performance." I contend that it was a reasonable step for me to seek this information, rather than judicially review the screening decision, as my clinical negligence case against Mr Nasser was already under way
with Alexander Harris solicitors when the screeners rejected my complaint.
The GMC's power to reopen a previous complaint, under Rule 14 of the pre-1st November 2004 GMC Rules, on receipt of "information or a complaint" constituting a "fresh allegation" against a doctor (although the "fresh allegation" quote is only taken from the heading for the Rule 14 clause and does not necessarily strictly apply to the words "or receives information or a complaint" within it), within two years of the previous complaint against the same doctor being dismissed by a medical screener, was discretional; but this discretion is subject to scrutiny by Court. I contend that the serious allegations outlined in Mr Goldin's initial letter to the GMC, of 21st September 2004, were sufficiently cogent to warrant a reopening of my complaint, under Rule 14. That Mr Goldin had written, in his capacity as an acknowledged expert, was enough to give my complaint's serious allegations a new, valid and unconsidered perspective; and, in this sense, his complaint
was in itself a "fresh" allegation. He also notes: " ... if Mr Nasser continues to practise in this manner, many of his patients would be at serious risk of being harmed." The screeners' rejection of my complaint ought to have been contrasted with Mr Goldin's letter and seen to be self-evidently flawed. However, the GMC's disregard for fairness towards me is further revealed in Ms Walsh's letter to Mr Nasser, of 9th October 2002, detailing Rule 14 "in the interests of fairness"; while, by contrast, the lack of reference to Rule 14 in Ms Walsh's letter to me, of 9th October 2002, complied with the medical screener's illegal direction on the SDF that "resurrection clauses" were to be "omitted". It is therefore reasonable to suspect that this illegal direction impacted the GMC's subsequent failure to reopen my complaint on receipt of Mr Goldin's evidence.
I contend that Mr Tim Cox-Brown's decision in his processing form, of 4th October 2004, on receipt of Mr Goldin's letter and directing it to be closed, was wrong. As his note on the form explains: he seemed to think that the GMC were "unable" to reopen my complaint because (his note claims) Mr Goldin's allegations had in effect already been considered when my complaint was screened out. If my complaint had been reopened, as was required by Rule 14, then, contrary to the medical screener's note of 27th September 2002 (on Ms Walsh's memorandum), claiming that there was "no evidence" of SPM or SDP (as opposed to there being no allegations), it ought to have been recognised by the GMC that there clearly now was evidence - in the form of serious allegations by an acknowledged expert in the field.
On 19th November 2002, Andy Laing (Investigation Manager at the time) replied to my letter of 10th October 2004, which was sent in parrallel terms to Mr Goldin's letter and explained that I had received a 30 000 pound negligence settlement from Mr Nasser's insurers. This was clearly in itself fresh information which disproved the medical screener's "appropriate standard" claim and ought to have provided further grounds for reopening my complaint. However, Mr Laing claimed that the GMC were unable to reopen my case, citing the same reasons as Mr Cox-Brown. I contend that this decision was also wrong.
As a result of my MP's letter of 16th November 2004, requesting that the GMC reconsider my case in light of Mr Goldin's serious allegations, Jackie Smith (Head of Investigation) wrote to my MP, on 21st December 2004, agreeing to review Mr Goldin's letter, of 21st September 2004. If it was not for this intervention by my MP, the GMC would have had no intention to give Mr Goldin's letter any real thought.
Made in response to my MP's request, Peter Lynn's memorandums (of 13th and 30th December 2004) reveal he considered that all four previous complaints against Mr Nasser (made before mine) were relevant grounds to be included in a review of Mr Goldin's initial letter to the GMC (the redacted information in the 13th December memorandum would likely refer to Mr Nasser's complaint history - which was mistakenly disclosed to me when I received an unredacted copy of the 30th December memorandum). In Mr Lynn's memorandum of 13th December 2002, he informed Paul Philip (Director of Fitness to Practise) that he was recommending a review by a "case examiner". However, Mr Lynn's reasoning to Mr Philip was that the screening decision was "correct and defensible", and that only the "correspondence since the screening decision" should be reviewed: "in order to decide that there is nothing that could be regarded as 'new' here that we should be exploring further." This
despite noting that a review was appropriate precisely because Mr Goldin's letter "does raise concern". As with Mr Cox-Brown's and Mr Laing's decisions referred to above, I contend that this was an irrational consideration of Mr Goldin's evidence and a misapplication of Rule 14. My case warranted reopening in light of Mr Goldin's evidence, and that ought to have included the reconsideration of my complaint's rejection by the screeners. In fact, Mr Lynn's implied direction that the decision would conclude there was nothing new was an irrational pre-empting of the review, and further indicates that the proposed review was primarily an expedient fudging of my MP's request that a review be undertaken. In Mr Lynn's later memorandum of 30th December 2004, to Mr Laing, he notes that a review was appropriate in light of: " ... Mr Goldin's letter, which I feel indicates there is an issue to be looked at here, and that Mr Goldin's letter is effectively new
information." At this point, Mr Lynn is effectively admitting that Mr Goldin's letter ought to apply to Rule 14.
On 21st January 2005 I wrote to Ms Smith informing her of my intention to supply an independent report from Mr Goldin, to be included in the GMC's review of Mr Goldin's letter of 21st September 2004. I contend that the GMC ought to have commissioned a report themselves, perhaps after asking Mr Nasser a few questions first, but that it was reasonable to commission an independent report myself in the absence of the GMC fulfilling their duty. Mr Laing's letter to me of 4th February 2005 explained that he would wait for receipt of Mr Goldin's report, to be included in the GMC's review of Mr Goldin's letter; and Ms Smith's letter to my MP of 15th February 2005 communicated the same message.
Mr Goldin's report took longer than expected (due to him being out of the country for extended periods); so on 2nd April 2005 I wrote to Mr Laing explaining that there had been a delay. Mr Laing's reply of 8th April 2005 states: "As indicated in previous correspondence to both yourself and your MP, we will continue to consider fresh information at any point should you wish to provide it." Mr Laing's letter repeated the incorrect decision first taken in Mr Cox-Brown's processing form of 4th October 2004, but it was nonetheless clear in also repeating that Mr Goldin's report would be considered when ready, as previously agreed, and made no point at all about delay.
I sent Mr Goldin's report to the GMC on 29th July 2005. Mr Goldin's report reveals a very serious discrepancy between his expert opinion and the opinion of the medical screener, who very likely knew virtually nothing about the technicalities of rhinoplasty. (It was mistakenly revealed to me in an unredacted record supplied by the GMC that the medical screener was the old age psychiatrist Dr Pearl Hettiaratchy.)
Anna Neill's (Investigation Manager) letter, of 23rd August 2005, rejected Mr Goldin's report, stating: "... the GMC can only reconsider re-opening a complaint if we receive new information relating to the complaint which significantly alters the allegations originally considered by the screeners; or if we receive fresh allegations about the doctor. ...The screeners who considered your original complaint did not agree that the care given to you was substandard and therefore there are no grounds to reconsider this matter." Mr Goldin's report plainly does significantly alter the serious allegations, not only because they are given a new and detailed perspective by Mr Goldin's expert opinion, but because they were ignored by the screeners in their illegal rejection of my complaint; had the screeners been in receipt of Mr Goldin´s evidence, even they could not have ignored his expert opinion and its extreme contrast to their own opinion. Just as Mr Goldin's
initial letter to the GMC ought to have qualified as fresh information under Rule 14, I contend that Mr Goldin's report also ought to have qualified for review because the GMC had agreed to extend their review of Mr Goldin's initial letter to encompass Mr Goldin's report.
I therefore requested a review by the GMC President, Sir Professor Graeme Catto, whom I managed to speak with on the telephone shortly after receiving Ms Neill's letter. On 16th September 2005, Ms Smith wrote to me communicating the result of this review: " ... the original decision taken by the screeners could only be reviewed in the light of new and fresh information or if there had been some procedural irregularity. Neither applies in this case. As such, the original decision stands. ... your complaint has been thoroughly considered on more than one occasion." (Ms Smith later contradicted this last sentence in her letter to my MP of 11th July 2006; see (3).)
As Ms Neill's and Ms Smith's letters rejected Mr Goldin's evidence because they claimed that it was not fresh information and therefore did not qualify for review, the result was that the GMC had effectively reneged on their previous decision to undertake a substantive review of Mr Goldin's evidence. A review remained necessary in accordance with Rule 14, dating from the GMC's receipt of Mr Goldin's initial letter of 21st September 2004. Ms Neill and Ms Smith attempted to justify their inaction with an over-strict interpretation and embellishment of Rule 14, which is fundamentally incompatible with the GMC's statutory duty to protect patients.
Even despite the GMC's decision to capitulate to pressure from my MP and arrange a more thorough review of Mr Goldin's letter, and then report, by a case examiner - although I contend that the proposed review ought to have included the reopening of my complaint - there is no evidence (redacted or otherwise) to indicate that the directions in Mr Lynn's memorandums were properly followed and any substantive review, of either Mr Goldin's letter or his subsequent report, took place at all.
The GMC were appearing to comply with my MP's request to re-consider Mr Goldin's letter (thereby acting in the direction of compliance with their statutory duty under Rule 14), and also then to extend the review to encompass Mr Goldin's report when it was ready, while simultaneously having no intention of undertaking an appropriately substantive review of Mr Goldin's evidence; and particularly not in context with my complaint, as was required by Rule 14. I contend that the GMC's decision processes were inconsistent throughout their consideration of Mr Goldin's evidence, and that their failure to reopen my complaint under Rule 14 was unfair.
(3) On receiving Ms Smith's letter of 16th September 2005, I initiated judicial review proceedings against the GMC, through a solicitor with Hodge, Jones and Allen. On seeking advice from their counsel, the GMC reneged on their position and, again, in effect agreed to consider Mr Goldin's evidence in the context of it being new information. After obtaining even further evidence from Mr Goldin the GMC undertook a Presidential review, which the President was to eventually renege on. I contend that the GMC were in effect treating Mr Goldin's initial letter to the GMC, of 21st September 2004, as new information right up to the decision in the President's review, on 26th August 2006. I also contend that the President's claim that he has no power to review my case is incompatible with the GMC's statutory duty to protect patients, and is an unfair discontinuation of the power to reopen complaints supplied by Rule 14 of the old GMC Rules. [* See end of (3) for
the alternative legal option.]
On 7th October 2005, my Hodge, Jones and Allen solicitor, Nina Ali, served a judicial review notice on the GMC: noting that I had received 30 000 pounds compensation from Mr Nasser's insurers, and asserting that the GMC's refusal to reopen my case on receipt of Mr Goldin's evidence was irrational; in breach of the GMC's duty to protect patients; and a procedural impropriety - in breach of the common law rules of natural justice or procedural fairness (Ridge v Baldwin 1964 A.C.40).
On 27th October 2005, after consulting their counsel, the GMC replied, through the GMC solicitor Janet Gray, claiming that their refusal to reopen my complaint is "not a challengeable decision" and that the screening decision should have been challenged: "The GMC has reviewed the correspondence but as no new allegations or new information was provided, in accordance with the Rules the matter was not re-opened. The proposed Defendant contents [sic] that this correspondence is not a fresh decision." For the reasons detailed at (2) I contend that the GMC's behaviour was not "in accordance with the Rules". I contend that my seeking of new information after the screening decision was a reasonable step and that the GMC's failure to properly and conscientiously apply Rule 14, of the pre-1st November 2004 Rules, is a challengeable decision. Ms Gray's letter continues: "However, on further consideration and legal advice, whilst Mr Goldin refers to the same
allegations already considered by the GMC he provides some new information and a greater analysis of the allegations against Mr Nasser's practice. ... The proposed defendant will now review the new material, i.e the evidence of Mr Goldin, to consider whether the complaint should be reopened. In those circumstances, the proposed Defendant does not believe a judicial review is necessary or appropriate." Therefore the GMC were in effect still continuing to treat Mr Goldin's evidence as new information.
Mr Goldin then supplied extra details about his CV and added academic references to his report, in response to Ms Gray's requests. Her letters of 22nd December 2005, in particular, set up flawed, irrelevant and illegitimate obstructions, and her attitude to Mr Goldin was, in places, little short of harassment (see, for example, the rather petty comments on his CV). There is no obligation on a complainant to provide a report at all. The independent report from an acknowledged expert in the field goes far further than anything needed by the GMC to appreciate that serious information has been supplied that requires further investigation. In fact, as I detailed at (2), I contend that sufficient information was supplied to the GMC with Mr Goldin's initial letter of 21st September 2004, and that the GMC's proposed review of this letter was treated as being in accordance with Rule 14 of the old rules from the point they received it. My commissioning of Mr
Goldin's report, to aid in the GMC's review of his initial letter, was done in the absence of the GMC fulfilling their duty to commission one. It is for the GMC to carry out whatever investigations are necessary, including commissioning any relevant reports. Ms Gray's suggestion that the GMC was "in the hands of" Mr Goldin was wrong, and was simply an abdication of responsibility. It is not the case that before the GMC acts, it is entitled to require the complainant to provide an extremely detailed expert’s report citing all relevant medical literature and professional guidelines - all at the complainant’s or the expert’s expense.
On 17th March 2006, Ms Gray sent me a letter stating that the GMC have "no power" to reopen my complaint, as the new GMC Rules have no provision to reopen complaints rejected by the now defunct screening process, which was only in effect before the 1st November 2004 Rules came into place. I contend that the GMC ought to have acknowledged this unfair and discontinuous aspect of the new GMC Rules, in relation to Rule 14 of the old rules; ought to have acknowledged their clear errors in handling my case; ought to have recognised that they had in effect been treating my complaint as reopened since receipt of Mr Goldin's initial letter; and ought to have acknowledged that my case ought to be applicable to the President's review in the new rules, for the safety of Mr Nasser's patients. Instead, the GMC fudged their position: Ms Gray's letter claimed that "without prejudice" to the GMC's view that they had no power to reopen my complaint - which plainly was a
prejudiced position - and in case that view was wrong, the President had decided to review my case.
Ms Gray's letter, of 17th March 2006, also states: " ... Mr Goldin has provided various articles and references in support of his opinion and this supplementary material does statisfy the test in Rule 12 (2) of the Fitness to Practise Rules ... the additional material satisfies this Rule because it is new and sufficiently cogent to merit a review; clearly this was not available when the screeners made the original decision." Aside from the fact that further evidence would have been available at the screening stage or, failing that, on receipt of Mr Goldin's initial letter, had the GMC done their job properly and commissioned a report in order to enable a fair consideration of my case; Ms Gray's assertion that only the academic references had satisfied the test of new information (a test common to both Rule 14 of the old rules and the grounds for review available to the President in the 1st November 2004 Rules) was yet another over-strict and irrational
consideration of Mr Goldin's evidence. It also contradicted the GMC's own previous assessments of Mr Goldin's evidence as new information; both in Mr Lynn's memorandums and in Ms Gray's letter, of 27th October 2005, in response to my initial judicial review action. However, Ms Gray's letter continued: " ... It would be quite wrong to launch any legal action before the conclusion of the review and before any consequential reconsideration." There remained the possibility that the GMC would acknowledge the serious nature of the allegations against Mr Nasser, and I was compelled to wait for them to complete their consideration of Mr Goldin's evidence and any resulting investigation.
Ms Gray's letter to me of 19th May 2006 reveals that my complaint is not out of time as the five year time limit applies from the events in-question to the time when the GMC first become aware of them, and that the GMC received even Mr Goldin's report within five years of Mr Nasser's operation. Ms Gray asked me to "identify and explain the source of the underlying power" which enables the GMC to investigate, with reference to their statutory rules. The GMC were aware that my Hodge, Jones and Allen solicitor was not currently acting for me, and would only have the funding to do so if I brought another judicial review. The GMC were also aware that Mr Nasser had access to a solictor throughout the President's proposed review. I am not a lawyer and ought not to have been expected to do the GMC's job for them by establishing if there were technical clauses in their rules which allowed them to investigate - particularly not in the absence of my access to legal
advice at that point. That the GMC asked me for my legal interpretation of their rules at this stage further reveals the disregard they had for the review's clear imbalances of fairness. Nonetheless, I reminded them that Mr Goldin's initial letter had been applicable to Rule 14 of the old GMC Rules, and also explained that the GMC have an overriding statutory duty to protect patients which should rightly cause Professor Catto to apply my case to his power for review in the new GMC Rules.
Jackie Smith's reply, of 11th July 2006, to another of my MP's letters requesting that the GMC investigate my complaint, remarks: "We do have Mr Goldin's report, which we received from Mr [X] and which we have had for some time now. Mr Goldin's report is detailed and needs careful consideration and because it is, we have taken longer than we had hoped to make a decision about whether we can reopen the complaint against Mr Nasser ... Professor Catto will be in a position to let Mr [X] know the outcome by Friday 4 August 2006." On 25th July 2006, I unexpectedly received a new independent surgeon report from the GMC. My reply to Ms Gray explained that it was unreasonable to require my response to Mr Devine's report within seven days, not least because I had been given no warning that the GMC would be producing one.
On 18th August 2006, I sent the GMC my response to Mr Devine's report. Mr Devine's report is based on the flawed premise that the incisions in-question must have served a legitimate purpose - even though he has no explanation for them. However, there is no reference to the content of Mr Goldin's report and it effectively leaves more questions than answers in trying to downplay the incisions in-question - which I maintain are by far the most serious aspect of Mr Nasser's treatment of me. It is suspicious that this expert was chosen by the GMC: his enclosed CV makes no mention of any training, qualifications or experience as an expert witness. It is doubtful that he acts as an expert witness in other GMC cases. It is likely that their secrecy in obtaining the report had partly been to prevent me from requesting to see Mr Devine in person or from enquiring about his suitability as an expert witness. Ms Gray's letters of 22nd December 2005, to myself and Mr
Goldin, criticised Mr Goldin's report and the delays incurred in obtaining Mr Goldin's evidence; yet the time it took the GMC to obtain their own report and its legal deficiencies as an expert-witness report reveal further hypocrisy.
On 25th August 2006, Ms Smith wrote communicating the decision in the President's review, citing "no power": "regardless of the strength or weakness of the fresh material." Not only had the President's original review timetable (detailed in Ms Gray's letter to me of 17th March 2006) proved worthless over the protracted period of his proposed review, but the review itself was not carried out. The lack of a transitional provision in the President's power for review in the new GMC Rules, in relation to Rule 14 of the old GMC Rules, is unfair and unjust (and its seems was essentially an oversight by the Privy Council in drafting the new rules); and the GMC have an overriding statutory duty to protect patients which ought to have caused Professor Catto to apply my case to his power for review in the new rules.
However, it appears that the GMC's intended effect of Mr Devine's report was to whitewash the allegations before following up with their refusal to investigate regardless of the evidence. The President's observation that "the passage of so much time means that memories will inevitably have faded" fails to grasp that the fundamental allegations concern what was done, that is: the legitimacy of the incisions in-question (which includes the evidence of dishonesty in Mr Nasser's pre-operative letter to Dr Veale); rather than what was said, which, it is true, cannot be fully verified at this stage. In the context of the allegations potentially being proven, the possibility that the incisions in-question were covered by informed consent would been negated, as it is alleged that it was a clinically pointless confidence trick amounting to an assault - to which I was particularly vulnerable at the time.
[* Or the alternative legal argument is that my case should have been reopened and dealt with under the old rules even though the new rules had come into place, as other cases (initiated before the new rules came into place) continue to be heard under the old rules at the GMC; or perhaps my case should have been reopened under the old rules and then handled under the new rules. Whichever option is more legally appropriate, I believe that a judge would have probably found in my favour had I got to see one. See Ms Gray's letter to me of 17/3/06 here: http://www.flickr.com/photos/bddstory/ to witness the GMC's obfuscation in full effect.]
(4) On 3rd October 2006, my Hodge, Jones and Allen solicitor sent the GMC a judicial review notice. On 17th October 2006, my solicitor received an aggressive letter signed by the GMC solicitor Janet Gray. The GMC threatened to seek costs if I applied for a judicial review. At this point I encountered problems obtaining legal funding and, shortly following receipt of Mr Furniss's report, the three month time limit proceeding from the decision in the President's review, of 25th August 2006, expired on 25th November 2006.
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Rule 14 of the old GMC Rules:
Fresh allegation as to conviction or conduct [The word "fresh" seems open to interpretation.]
14.(1) This rule applies where:
(a) in any case relating to conviction the Committee determine that no inquiry shall be held; or
(b) in any case relating to conduct
(i) under rule 6(3) the medical screener decides that no reference to the Committee is to be made; or
(ii) the Committee determine that no reference for inquiry shall be made,
and the Registrar, at any time within the two years following that determination or decision, receives information that the practitioner has been convicted in the British Isles of a criminal offence or has been convicted of an offence elsewhere which, if committed in England or Wales, would constitute an offence or receives information or a complaint as to the practitioner’s conduct.
(2) Where this rule applies, the medical screener may direct that the original conviction or complaint be referred, or referred again, to the Committee, as well as the later conviction, information or complaint.
(3) In any case where the decision under paragraph (1)(b)(i) was made before 3rd August 2000, the reference there to the medical screener shall be read as a reference to the President.
Rule 12 of the new GMC Rules:
Review of decisions
12. - (1) Subject to paragraph (2), the following decisions may be reviewed by the President -
(a) a decision not to refer an allegation to a FTP Panel; [The decision for my complaint was not to refer to the Preliminary Proceedings Committee; this stage was scrapped with the introduction of the new rules.]
(b) a decision to issue a warning in accordance with rule 11(2), 11(4) or 11(6); or
(c) a decision to cease consideration of an allegation upon receipt of undertakings from the practitioner in accordance with rule 10(3).
(2) Subject to paragraph (3), the President shall not review a decision specified in paragraph (1) unless he considers that there is new evidence or information which makes such review -
(a) necessary for the protection of the public;
(b) necessary for the prevention of injustice to the practitioner; or
(c) otherwise necessary in the public interest.
(3) The President may review a decision specified in paragraph (1) where he receives information that the General Council has erred in its administrative handling of the case and he is satisfied that it is necessary in the public interest to do so.
(4) Where the President decides to review a decision specified in paragraph (1), the Registrar shall -
(a) inform the practitioner and the maker of the allegation (if any) of the decision to review;
(b) inform the practitioner and the maker of the allegation (if any) of any new evidence or information and, where appropriate, provide them with copies of any new evidence received; and
(c) seek representations from the practitioner and the maker of the allegation (if any) regarding the review of the decision.
(5) Where the President decides to review a decision specified in paragraph (1), he may -
(a) determine that the original decision should stand;
(b) refer the allegation for consideration under rule 8; or
(c) refer the allegation for consideration under rule 10(2).
(6) Where the President has reviewed a decision specified in paragraph (1), the Registrar shall notify -
(a) the practitioner;
(b) the maker of the allegation (if any); and
(c) any other person he considers has an interest in receiving notification,
in writing, as soon as reasonably practicable, of the President's decision, together with his reasons for that decision.
