FITNESS TO PRACTISE PANEL
(applying the General Medical Council’s Preliminary Proceedings Committee
and Professional Conduct Committee (Procedure Rules) 1988)
On:
Wednesday, 14 May 2008
Held at:
St James’s Buildings
79 Oxford Street
Manchester M1 6FQ
Case of:
STEPHEN ANDREW SPENCER BM BS 1976 University of Nottingham
Registration No: 2305893
DAVID PATRICK SOUTHALL MRCS 1971 Royal College of Surgeons of England
Registration No: 1491739
MARTIN PHILIP SAMUELS MB BS 1981 University of London
Registration No: 2732178
(Day Three)
Panel Members:
Mr D Kyle (Chairman)
Mrs V Brickley
Mrs S Hollingworth
Dr T Okitikpi
Dr M Sheldon
Mr A Forrest (Legal Assessor)
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MR M FORDE, Queen’s Counsel, instructed by RadcliffesLeBrasseur, Solicitors, appeared on behalf of Dr Spencer.
MISS M O’ROURKE, Counsel, instructed by Hempsons, Solicitors, appeared on behalf of Dr Southall.
MR C FOSTER, Counsel, instructed by RadcliffesLeBrasseur, Solicitors, appeared on behalf of Dr Samuels.
MS J SULLIVAN, Counsel, instructed by Eversheds, Solicitors, appeared on behalf of the General Medical Council and the Complainants, Mr and Mrs C Henshall.
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Transcript of the shorthand notes of
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INDEX
Page
ABUSE OF PROCESS APPLICATION
MR FOSTER on behalf of Dr Samuels continued 1
MR FORDE on behalf of Dr Spencer 2
MISS O’ROURKE on behalf of Dr Southall 3
THE LEGAL ASSESSOR 4
MS SULLIVAN on behalf of the Council 5
MR FORDE on behalf of Dr Spencer 21
MR FOSTER on behalf of Dr Samuels 27
THE LEGAL ASSESSOR’S ADVICE 33
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THE CHAIRMAN: Good morning everybody. Mr Foster, I think you had completed your submissions on behalf of Dr Samuels.
MR FOSTER: I had completed my submissions, sir, but there is one point I must make before we go on now.
THE CHAIRMAN: Very well.
MR FOSTER: Disclosure in this case continues. Just before coming in to the room, I was handed an attendance note dated 25 March 2008. It relates to a conversation between those instructing my learned friend and Dr Stimmler. It says, amongst other things, that he was asked to query whether there was any duty to warn of adverse effects:
“Dr Stimmler did not see that this was necessary as the adverse effects were not known until after the trial had finished. He thought that there had been quite extensive work to ensure that the effects on bonding were minimised.”
And it goes on. It is now perfectly plain that Dr Stimmler and Dr Nicholson no longer support a number of the allegations which they apparently originally supported, if they ever did, at the time that these charges were drafted.
We have, on this side, no idea what the experts the GMC proposes to call are currently supporting. We are entitled to know. We should have known a long time ago, we are entitled to know it now. It is pertinent, for all the reasons that I articulated yesterday in the process of this abuse of process argument. I was saying, and Mr Forde was supporting me in this, that you can conclude that this is a misconceived abusive prosecution because, amongst other things, there is simply no evidence whatever upon which a proper prosecutor could conclude that there was a chance of getting these allegations home.
I am formally asking my learned friend to say what is the final position about her expert evidence, which of these allegations levelled against the practitioners will finally be supported by the experts? They have plainly changed their position and we are entitled to know what their final position is going to be. If that means, and I suspect it does mean, the filing of further amended expert reports which reflect the positions embodied in the attendance note we have just seen, that is what should be done.
THE CHAIRMAN: The difficulty the Panel is in at the moment is that we are not at the moment at an evidence considering stage. I quite understand the point you are making, and no doubt this is a matter which you have discussed with Ms Sullivan and have now made the point in the open hearing that you do have these concerns. Presumably the document you have just been referring to is not one which you would wish the Panel to have at the moment in the context of the application which is currently being made.
MR FOSTER: I do not think there is any relevance other than the part which I have read out. The point is that we still do not know the case we have to meet. We are entitled to have disclosed to us the expert evidence upon which the Council is intending to rely. At the moment the expert evidence, such as it is, is contained in a mass of attendance notes as well as expert reports. Those attendance notes indicate a massive shift of mind. I am not clear that the Council has any expert evidence which even purports to support the allegations against Dr Samuels.
The disclosure which has been coming in piecemeal over the last few days, supports very strongly the contention I was making yesterday, namely that there must be an inappropriate motive for continuing at least against Mr Samuels because there is no evidence against him at all. That is something which is relevant at this stage for the two reasons I set out in my submissions.
THE CHAIRMAN: You indicated yesterday and it is contained in section 6 of your skeleton argument as to how you would present the merits of the case as having any relevance to the abuse of process argument.
MR FOSTER: Indeed.
THE CHAIRMAN: Thank you, Mr Foster. Mr Forde?
MR FORDE: Sir, might I briefly echo those concerns. It is not any criticism of my learned friend, and in many ways there is a certain irony that we are able to express consternation because of the completely transparent approach of Ms Sullivan and her instructing solicitor to disclosure, upon which they are to be congratulated. The document that I have been handed this morning, dated 25 March 2008, deals with two issues – the neck trauma, where Dr Stimmler appears not to be supporting the suggestion that that was an adverse incident which should have been reported to parents or, alternatively, to the trial. That is paragraph 6 of the charges against my client. The 28 March attendance note that I read part of yesterday, appears not to support charge 8, and this latest document appears in relation to the duty, which I was querying, of a consultant as set out in paragraph 11(d). Again it appears not to be supported because the attendance note suggests that the consultant treating the patient did not retain any responsibility once he delegated the consent taken to a junior doctor. Dr Stimmler thought that the doctor’s duty, that must be the consultant, ended with checking that the consent form had been signed. He did not think it was necessary to return to the parents to check that they had understood and you will recall the anxieties I was expressing about the fact that these babies had to be in the trial within four hours. It is a difficult area in any event.
I go back a stage in relation to Mr Foster’s submission. If it is indeed the case that the expert evidence relied upon by the General Medical Council does not support those charges in particular, you ought not to be required to consider them. They should have the same line through them as you have on the amended charge sheet in relation, for instance, to charges 3(b) and 4. That is the concern that we have. It would be an awful shame if you had to involve yourself in anxious deliberation of our submissions only to find that the General Medical Council were going to withdraw charges that you may or may not have ruled upon in relation to abuse. I think, not only in fairness to the doctors, but in fairness to you as a Panel, if the expert evidence is melting away, as it appears to us it is, then we all ought to be made aware of that fact.
MISS O’ROURKE: Sir, can I join in. Although I am not involved in the applications, this is an issue which concerns me. When Ms Morris handed me the attendance note, which I think is now the fourth that I have seen from Dr Stimmler, I said to her it is now imperative that we have a revised report from Dr Stimmler because experts have duties, both under the Civil Procedure Rules in a case authority called The Ikarian Reefer, but also from members of institutes of experts – and one would expect in GMC proceedings the same – that if they undergo a change of view from the time at which they have provided their report, then they should notify all parties of that change of view because they are independent.
The report served originally from Dr Stimmler pre‑dated the Notice of Inquiry, pre‑dated the charges and pre‑dated the charges as they now stand as of yesterday morning. I said to Ms Morris, on behalf of Dr Southall, that I would like to see – and two sides of A4 would do – something from Dr Stimmler referring to his original report, now referring to the heads of charge that remain standing and indicating in the light of the contents of those four subsequent attendance notes which, if any, of those heads of charge would he be supporting in his expert evidence.
My own belief, having looked at those attendance notes, is that, as far as Dr Southall is concerned, charges 6 to 9 must now be an issue and also, as Mr Forde had said, 11(d) must be an issue. If that is the case, I would like to know and as soon as possible, because our preparations for our case are ongoing. If those are charges which Dr Stimmler does not support – and he is the only medical expert you are going to hear because Professor Hutton is a medical statistician and is not a registered medical practitioner, and Dr Nicholson is an ethicist and is also not a registered medical practitioner – if the only medical expert evidence you are going to hear is from Dr Stimmler, and he is now is backing down on a number of the charges, then we need to know as soon as possible because it influences how we prepare our defence.
THE CHAIRMAN: Thank you, Miss O’Rourke. Ms Sullivan, before I ask you, I think our Legal Assessor has something to say.
THE LEGAL ASSESSOR: I am not sure we are all concentrating on abuse of process at the moment. I entirely accept the doctors need to know the case against them. What the two counsel who are party to the application are really saying in respect of this part of the evidence, is an application, an equivalent, to quashing the indictment or quashing various counts on the indictment on the basis of insufficient evidence.
My preliminary view is that I am not prepared to advise the Panel to do that by this very selective quotation of various bits of evidence. That is the sort of thing they could only do, as a judge would do, by looking at the whole of the, as it were, committal evidence which I do not imagine anyone wants to put before the Panel. That may be something you wish to think about further. If you want to make a full blown attack on charges on the basis that there is no evidence to support them, then it will have to be done that way rather than just saying, “The charge says that, and I have this attendance note that says something different”. Is there any difficulty about producing a revised report from Dr Stimmler to consolidate his views?
MS SULLIVAN: I can understand the request for that and I do not see any difficulty with that, apart from timing because he is away at the moment. I certainly understand that request and we will do our best to supply that.
THE LEGAL ASSESSOR: I imagine the next question is when?
MS SULLIVAN: We are just finding out when he is returning. Can I say in the interim that I agree with the Legal Assessor that the issues that have been raised now are different from the way in which the abuse application has been put hitherto. I propose now to deal with the application as it was made yesterday by Mr Forde and Mr Foster. It would not be right for you to look at the merits of the case without seeing all the evidence, and that has not been something that you have been asked to do so far. Sir, Dr Stimmler is back on 23 May.
MR FOSTER: Could I respond to your observation. I set out in my skeleton argument where I dealt with the merits the evidence which has been produced by the General Medical Council in relation to the heads of charge against Dr Samuels. In other words, I put the case against Dr Samuels as high as on the GMC’s own evidence it could be put. I will be waiting to hear what the answer in Ms Sullivan’s response is. If her response is, “You have misrepresented the GMC’s case and in addition to what you put before the Panel in your skeleton argument, there is a lot of other evidence and here it is”, which makes it sensible still to level those allegations against Dr Samuels, then of course that will be a ground for those allegations to remain levelled against Dr Samuels. If there is no such response from Ms Sullivan, you can conclude there is no answer and you should take out your pencil and put a line through the corresponding charges against Dr Samuels.
THE LEGAL ASSESSOR: What I am wondering about is, if the case is opened and Ms Sullivan details what her evidence is, then you should know the case against you. I do not know whether she is proposing to do that in answer to your submissions, because it is fair to say you made many of these points yesterday by attendance notes arising. It is not brand new this morning. I wonder whether that should go off until after the opening to see how she intends to set about proving these issues or whether she is prepared to do that in answer to your submissions.
MR FOSTER: I do submit she is bound to do that in answer to the submissions.
THE LEGAL ASSESSOR: She has, presumably, prepared an opening and so, given a little time, could you deal with it in that way, Ms Sullivan?
MS SULLIVAN: This application has primarily been based on the question of delay and that is what I want to deal with now. My response is going to be to say that this Panel should not look at the merits of the case now, that that is not an appropriate approach when an application has been based on primarily delay.
THE LEGAL ASSESSOR: I do not want to embarrass you, but are you in a position to say to the Panel that you are satisfied that you have evidence to support each of the allegations which remain?
MS SULLIVAN: Yes, we do have evidence. We have evidence from a number of different experts. They do not all have the same view of particular heads of charge, but we do have evidence, for example from Dr Nicholson, in relation to heads of charge, I think 6 to 10 were the ones just mentioned by Miss O’Rourke ‑‑ 6 to 9. Dr Nicholson is supportive of those heads of charge and has not changed is view on that.
THE LEGAL ASSESSOR: It is not a case that you need to wait until Dr Stimmler is back before deciding whether you are pursuing?
MS SULLIVAN: No, that is right. Dr Stimmler has a different view of some of those heads of charge. It will be for the Panel hearing the expert evidence to evaluate that evidence and which evidence they prefer and whose expertise they may prefer in relation to particular heads of charge. I do have evidence to support it, otherwise I would not be pursuing it. It is a question of what weight is to be attached to that evidence and the respective experts. My learned friends know that, that is no surprise them. There is nothing that has been disclosed in this note this morning that fundamentally alters that position.
THE LEGAL ASSESSOR: I think we must let Ms Sullivan proceed as she wishes and then we can resume this argument, if appropriate, once she has made those submissions and Mr Foster and Mr Forde have answered.
THE CHAIRMAN: It seems to me, picking up on the points raised by Mr Forde and Mr Foster, and also the discussion which the Legal Assessor just indicated, there are really two dimensions at the moment to the matters which have been raised this morning. The first is not a directly live issue at the moment. It is a matter of what the evidence in support of the charges might be in due course. Obviously, one of the matters which you, as counsel for the General Medical Council, have to keep under review is the state of the evidence as it appears to you at any given time and the evaluation you make of it. As has been accepted, I think on both sides of the room, particular mention having been made of Dr Stimmler, that there have been some recent disclosures which tend to suggest that Dr Stimmler may be changing his position. I do not know whether that is correct or not, but certainly the indication you have just given us is that perhaps it would be desirable for Dr Stimmler to review his evidence against the charges as they now are and produce a supplemental report. We know that cannot happen until 23 May at the earliest because he is not back until then. That is one dimension.
The second dimension which is more immediately relevant, is in the context of the submissions which Mr Foster was making yesterday, in which he submitted to the Panel that the merits of the case have a relevance, as he describes it, to his application around abuse of process on two bases. First, he suggests that the exercise of discretion in an abuse of process argument a tribunal will be understanding or reluctant to stay for abuse a case which otherwise has a high prospect of success.
The second point was that they indicated something about the motive for bringing the proceedings if the prospects of proceedings are extremely low, it plainly suggests that something other than an objective assessment of prospects and public benefit is acting. As I understand what Mr Foster is saying in relation to the attendance note he has referred to this morning, he would say that that is some support for the submission as he puts it in his argument. Whether he is right or not in that submission is a matter which is now open to you respond to as part of your response, and it is a matter for the Panel to consider when they determine this part of the application. There are two dimensions, one for the future and one in the context of the submissions Mr Foster was making yesterday.
If I am right in the expressing the Panel’s understanding of the expression in that way, and I see that Mr Foster and Mr Forde are both nodding, that, I think, is that second dimension as I describe it which is of more immediate relevance in the context of this application and it is open for you to deal with that in your response.
MS SULLIVAN: Yes, I was proposing to deal with it in my response.
THE CHAIRMAN: Now that that matter has been raised and discussed and seemingly put in the appropriate two contexts, I think if that is all that Mr Foster, Mr Forde and Miss O’Rourke wish to say, we will now give the floor to you, Ms Sullivan, for your response to the submissions which were made yesterday.
MS SULLIVAN: Can I begin by handing out the documents upon which I would propose to rely in responding to this application, the first of which is a skeleton argument prepared by me in anticipation of these applications.
THE CHAIRMAN: That will be C1. (Document handed)
MS SULLIVAN: The second document is a chronology which will be C2. (Document handed) The next document is an authority, R v Smolinski [2004] 2 Cr App R 40, C3. (Document handed)
THE LEGAL ASSESSOR: A Panel Member has asked me is this an agreed chronology? Have the other parties seen it?
MS SULLIVAN: The other parties have seen it. They are probably not in a position to agree it. The next is another authority, R (on the application of Henshall) v General Medical Council [2005] EWCA Civ 1520, if that could be C4. (Document handed) Finally a one page but two-sided document which is an additional judgment in the case of Henshall dated 31 January 2006, C5. (Document handed)
Sir, as you know from the skeleton arguments produced by Mr Forde and Mr Foster, the essential submission in this case is based on delay in that what they are saying is that as a result of delay these proceedings should not be permitted to continue because they violate the rights of the doctors, they violate their rights contrary to Article 6 of the European Convention on Human Rights to a hearing within a reasonable time and/or are an abuse of process under the common law.
What I have sought to do in my skeleton argument, first of all, is to set out the legal framework for you and the differences between Article 6(1) and the common law. I have set out there that there is a distinction between Article 6 and the common law in that Article 6(1) is concerned with procedural delay in the course of proceedings whereas the common law is concerned with delay between the commission of the allegedly wrongful actions and the commencement of the proceedings. Therefore in this case the common law test would apply from 1992. Under Article 6(1), the starting point in disciplinary proceedings, as I think is accepted, is the date of the letter notifying the doctor of the allegations as indicated in the General Medical Council v Pembury [2002] Lloyds Rep Med 434. The date for the purposes of Article 6 in this case would be 2001.
Obviously in assessing the reasonableness of any delay regard must be had under the ECHR to the complexity of the case, the applicant’s conduct and the manner in which the matter was dealt with by the administrative and judicial authorities. It is essential for you to look at this case because cases need to be assessed on an individual basis and the courts have made clear that the threshold is high before it can be said in any particular case that a period of delay is unreasonable. That is the first question to assess and ask yourselves under Article 6, whether the period of delay has been unreasonable and that applies from 2001.
Just going on to indicate how to approach the Article 6 question, I have indicated in paragraph 5 of my argument that where a public authority, and of course the GMC is a public authority, has caused or permitted delay such as to amount to a breach of the right under Article 6(1) to a hearing within a reasonable time, there is necessarily then a breach of Article 6(1). However, what is important is this. In the Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, Lord Bingham said if there is such a breach:
“… there must be afforded an appropriate remedy, but it would not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing, or (b) it would otherwise be unfair to try the defendant.”
Obviously this was dealing with criminal cases but it is a simple principle.
“The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.”
What that means is that it is not necessary to show prejudice to establish a breach of the right to trial within a reasonable time, but it is necessary, and this is key, the Council would say, to show that it is not possible to have a fair trial, or that it would not be fair to try the accused if the proceedings are to be stayed as an abuse, and such cases will be exceptional and it is for the defence for the doctors in this case to prove on a balance of probabilities that a fair trial is not possible or it would not be fair to try the accused. That is the legal framework as far as Article 6 is concerned in the submission of the Council and of course Mr and Mrs Henshall for whom I also act.
I have then set out the common law position. As I have already said to you, the common law is concerned with delay from the outset and goes up to the commencement of the proceedings, so the delay would be subject to common law considerations from 1997 through until 2001 and beyond of course; that is where it overlaps with the Article 6 arguments. I have set out in paragraph 7 the common law principles relating to cases in which it is contended there has been an unjustifiable delay. The relevant decision as far as common law delay is concerned is another Attorney General’s Reference but this is No 1 of 1990 [1992] QB 630. I have just summarised the rationale of that decision:
1. A stay should never be imposed where the delay has been caused by the complexity of the proceedings
2. It would be rare for a stay to be imposed in the absence of fault on the part of the prosecutor or complainant.
3. Delay contributed to by the actions of the defendant should not found the basis of a stay.
4. In order to succeed, the burden and standard of proof are the same. The defendant must show on the balance of probabilities that, owing to the delay, he will suffer prejudice to the extent that no fair trial can be held, and lastly of importance, the GMC would say, in the context of these proceedings,
5. The prejudice the defendant must show is prejudice that cannot be cured by appropriate rulings during the hearing.
To summarise the position as I understand it, the difference between Article 6.1 and the common law is that there is no need to show prejudice to establish a breach of the right to a trial within a reasonable time under Article 6. There is a need to show prejudice under the common law. However, in both cases there is an important overlap in that it is necessary in both cases to show that no fair trial can be held. I have cited there an authority in relation to the common law but I will come back to deal with that at a later stage.
Could I just deal with the case of John Rogers which was a first instance decision of the PCC, your document D1-D. This is a case that is in fact referred to by the editors of Fitness to Practise Healthcare Regulatory Law Principle and Process at paragraph 18-019. Really what the authors are saying is that little benefit is to be derived from describing these decisions and relying upon them. It says:
“The case of Dr Rogers is sometimes cited at the General Medical Council as a decision that should be taken to reflect the Preliminary Proceedings Committee’s views on the issue of delay and reasonable time in medical disciplinary cases.”
It points out:
“It has never been submitted to judicial scrutiny and is not obviously reported because of the nature of the decision.”
It indicates that:
“Although this decision was cited in Haikel v General Medical Council [2002] UKPC 37, it is submitted that little weight can be attached to it because the full facts on which the decision turned are not known.”
There is little weight, the Council would say, to be attached to that decision which of course in any event pre-dated the Attorney General’s Reference No 2 of 2001 to which I have referred in paragraph 5. The Council’s submission would be that that is not a decision that should influence you in your consideration of this particular case.
Sir, having dealt with the legal framework, as I understand it, and I know the Legal Assessor will advise you in due course as to how to approach the law, I have then gone on to attempt to apply those principles as I understand them to the facts of this case. What I have done in my skeleton argument at page 2 onwards is I have divided up the different periods of time in this case into these periods: 1992-1997, 1997-2001 and 2001-2008. Article 6 only comes into play in 2001. The reason I have divided it up in this way is that 1992-1997 is the period before any complaint was made to the General Medical Council. What the Council would say, and indeed on behalf of the Henshalls as well in relation to this period of time is that there was no unreasonable delay on the complainants’ part, because we are only talking about the complainants at this point in time. I say that for these reasons:
The Henshalls’ children who, as you know, were both born prematurely and entered into the CNEP trial, were born in 1992. The dates are there in paragraph 9 for you. Patient 7 was born on 12 February 1992 and Patient 6 on 14 December 1992. As you know, Patient 7 died just over 60 hours after her birth and Patient 6 was subsequently found to have cerebral palsy. In fact, and this comes from Dr Stimmler’s report, it was not until 18 March 1994 that an adequate assessment of Patient 6’s neurological function was carried out. That gives you an indication of the state of knowledge of the parents, the complainants.
Following on from the diagnosis of cerebral palsy, the Henshalls had then to make their own investigations about what had happened.
They now have considerable knowledge about the trial. In fact the Court of Appeal judgment, to which I will refer later, describes Mrs Henshall’s knowledge of the case as encyclopaedic. That was not the position in 1994 when they were ordinary non‑medically qualified parents. It was only in the course of pursuing civil proceedings that they came to hear and learn more about the treatment their children had received. They only discovered, they say, in 1997 that their daughters had been part of that trial. I make the point here that of course you have heard no evidence and should not in the council’s submission be prejudging it at this stage. But that, on the face of it, is what the Henshalls say. They say that after meeting with the chairman of the Ethics Committee and after a meeting, I think subsequently, with Dr Spencer on 18 March 1997, they wrote their letter of complaint to the GMC, which is in the bundles before you. That is dated 27 April 1997.
Therefore, it is said on their behalf and the council’s behalf that there was no unreasonable delay in this period. In any event, any delay was not such as to cause serious prejudice to the extent that no fair trial could be held. You may think that Dr Spencer would undoubtedly have been aware of the potential civil proceedings in relation to Patient 6 and would have been able to collate and preserve evidence in relation to her and her involvement in the trial, as would the solicitors acting in those proceedings.
You also, Sir ‑ and this is where I will mention to you the case of R v Smolinski, which is C3 in the documents that I handed to you ‑ need to take this case into account in the submission of the council because this makes clear that any application for a stay based on delay in reporting misconduct, and that is what we are talking about here, should not be made at the outset of the case. You will see from the head note on the first page of the authority that the appellant in this case was charged with offences of indecent assault. These offences were first reported to the police some 20 years later. An application was made on his behalf to stay the proceedings for abuse of process, the submission being that he could not receive a fair trial as a result of delay, and ‑ and this is something being alleged in this case ‑ that he would be prejudiced by lack of memory because of the time that had elapsed. The trial judge in this case came to the conclusion that on the balance of probabilities it had not been shown that a fair trial was impossible.
The appeal in this case was successful for different reasons, but what was said in this case was that applications to stay proceedings based on abuse of process where there had been delay had become prevalent, but should be discouraged. It was indicated that in the normal way it was better not to make an application based on abuse of process. About six lines from the bottom of page 661, it was said:
“Unless the case was exceptional, the application would be unsuccessful. If an application were to be made to a judge, the best time for doing so was after any evidence had been called and for the judge then, having scrutinised the evidence with particular care, to come to a conclusion whether or not it was safe for the matter to be left to the jury. That was a particularly helpful course if there was a danger of inconsistencies between the witnesses of the sort that; it was common ground, had occurred in this case”.
The council says that that is the approach that you should adopt in this case in relation to this period of time. Indeed, it may well be the case that by 1997 any prejudice that either of these doctors had suffered might have occurred by that stage in time, although obviously with the passage of time the point can be made that the longer the time the more memories may fade.
I now deal with the second period of time that I have identified in my skeleton argument. That is 1997 to 2001. This period is still governed by the common law, therefore again it is necessary for the doctors to show on a balance of probabilities that they will suffer serious prejudice to the extent that no fair trial can be held. Of course I accept that the GMC have subsequently apologised to the doctors for the delay in this period and indeed in the latter period to which I shall come. I am not seeking to go behind that. However, the point needs to be made in the council’s submission and on behalf of the Henshalls, that there would inevitably have been some delay. I say that because of the nature of the case.
As I have set out in paragraph 11 of the skeleton argument, Mr and Mrs Henshall were not alone in complaining about the trial. Complaints were also made against other doctors involved in the trial, including Dr Southall. The GMC had to investigate a number of complaints in a clinical trial that involved 244 patients, so it was a complex and serious case. The chronology has been supplied to you to show that it was not the case that nothing was happening between 1997 and 2001. You might have been left with the impression that nothing was happening. But you can see that inquiries and investigations were occurring during that period of time. Also, it is not necessarily wrong to say that the outcome of the other inquiries was something of an irrelevance because those other inquiries, such as the Griffiths inquiry, may have revealed evidence that was relevant to the trial and to the doctors` conduct. So you can see that inquiries were being made during that period of time.
However, even if you are to conclude that, as the GMC has accepted in correspondence, that some of the delay was excessive in that period of time, that is not enough. The delay in this period of time between 1997 and 2001 has to have caused serious prejudice such that no fair trial can be held. The council would say that is fair trial can be held because of the procedural safeguards in the hearing process. I have referred to that in paragraph 13 of my skeleton argument, where I have set out that there are procedural safeguards in the hearing process itself; namely, the burden and standard of proof and the assistance of the Legal Assessor who can advise about the admissibility of evidence or the weight that should be attached to it.
I have also indicated that this is a case where a considerable amount of documentation relating to the trial has been retained. Dr Southall kept his material. That is what he has indicated in various articles that have appeared over the years. So a lot of documentation that is relevant to the allegations is available.
I come then to 2001 to 2008. Sir, I just propose to go through the chronology in this period, not the chronology that I have handed to you but the chronology as I have set it out at page 3 of the skeleton argument and paragraphs 14 to 19 because this case has taken an unusual course. I think that it is sometimes difficult to take on board the exact chronology of events. I want to ensure that we all know what occurred when.
So the first screening of the complaints took place in 2001. It was on 30 March 2001 that the GMC wrote to Drs Spencer and Samuels enclosing affidavits by Dr and Mrs Henshall, and you have been told, although you have not seen those ‑ that is an example of having only seen part of the material and not all of it ‑ those affidavits were sworn on 1 November 2000. The doctors’ comments were invited on them. They responded; their representatives responded. As and Mr and Mrs Henshall are the complainants in the case ‑ this is an old rules case ‑ they were entitled to a copy of the doctors` responses and to make their own comments on them. That again explains that part of the essential process of referral in itself takes some time.
Thereafter the cases of each doctor were considered by the GMC screeners, and in Dr Spencer’s case by the Preliminary Proceedings Committee. Dr Spencer was informed by letter dated 28 January 2002 that the PPC had decided to not to refer his case to the Professional Conduct Committee. Dr Samuels was informed by letter, I think dated 15 March 2002 that the screeners had decided not to refer the complaint against him to the PCC, so the proceedings at this stage stopped at an earlier point in relation to Dr Samuels.
Then on 2 May 2002, the GMC wrote to both doctors ‑ again you have seen this ‑ informing them that Mr and Mrs Henshall had written challenging the GMC`s decisions and that in the course of investigating this challenge, the GMC discovered that because of an oversight over 1600 pages of documents submitted by Mr and Mrs Henshall in support of their allegations against the doctors, had been omitted from the case papers provided both to the screener and to the PCC. It was therefore proposed that the decisions of the screener and the PCC should be taken afresh.
It is then common ground that there was quite an exchange of correspondence which in itself took quite some time between the GMC and those representing the doctors between the legality of reconsidering the allegations. However, the GMC decided to do so in fairness to the complainants, whose fault it was not that these documents had not been considered. On 28 January 2004, as you see from paragraph 17, both doctors were informed that Mr and Mrs Henshall`s complaint had been referred to the PPC.
Then on 12 March 2004 the doctors were informed that the PPC having considered that material had decided not to refer the allegations to the PCC on the basis that there was no real prospect of proving serious professional misconduct. A similar decision was taken in relation to the allegations against Dr Southall.
Mrs Henshall then applied for permission to claim judicial review in respect of the PPC’s decision not to refer her and her husband’s complaints against all three doctors, so that is Drs Southall, Samuels and Spencer to the PCC. Mr Justice Pitchford refused her application. However, on 13 December 2005 the Court of Appeal, after hearing full argument, allowed her appeal. There were a couple of reasons for doing so. One of which was that the PPC when deciding against referring the case purported to resolve disputed factual issues.
Following that, in which it was indicated that the only fair outcome was that the PPC should be reconstituted to do the job it had so far failed to do, on 2 November 2006 the Investigation Committee, sitting as the Preliminary Proceedings Committee referred the majority of the Henshalls’ allegations for hearing by a Fitness to Practise Panel. The case obviously then had to be investigated and listed for hearing, which the council would say was done within a reasonable time.
So the point in relation to the delay between 2001 and 2008 is this, although the delay in May 2002 to February 2004 was caused by the need to re‑open the case because of the error in the screener and the PPC not considering those 1600 pages of documents. Thereafter, there was not in fact any culpable delay because the Henshalls were pursuing judicial review, which they had every right to do. As you know, the judgment, as you can see from the decision itself, which I will ask you just to take up a moment. This is C4.
That judgment was handed down on 13 December 2005. That in fact was not the end of it because Miss O’Rourke went back to the Court of Appeal to argue further about this matter, and the final judgment is dated 31 January 2006. So, as I indicated, it is by no means the case that there is culpable delay in this period, and the time after the referral in November 2006 obviously had to be taken up with gathering evidence in a form that could be presented to you in what was a complex matter.
In the submission of the Council, the judgment of the Court of Appeal is key to these applications that are based on delay. As I said, essentially, by a majority of two to one, the Court of Appeal held that the Preliminary Proceedings Committee had erred in law. It had erred in not allowing the complainants sight of Dr Southall’s responses and also, as I just indicated to you, in purporting to resolve disputed factual issues. Can I just read to you a part of the headnote of the judgment, the second page of the report. It is the last paragraph of the headnote where it begins, “The only fair outcome”, towards the top of the page, the fourth paragraph at the top of the page where the Court of Appeal said:
“The only fair outcome was that the PPC should be reconstituted in order to do the job it had so far failed to do. It should make it clear first of all, that unless, unless [Dr Southall] agreed to let the complainants see his submissions, if necessary on suitable undertakings, the submissions would be put aside. Secondly, it should act on the published literature only if, having considered the BMJ article alongside the [Griffiths] report, the [Hull] report and any other relevant material placed before it, it was satisfied that there was in sum no evidence capable of raising a question within section 11(2). It was not the PPC’s task to evaluate conflicting professional views of issues raised by the complaint. Its final task was to apply, with whatever exegetic help it found useful, the test set by rule 11(2): whether the material advanced for and against the complaint raised a question whether one or more of the practitioners had committed serious professional misconduct.”
In other words, the Court of Appeal were granting Mrs Henshall the relief that she had sought. The point is that by the time this case comes before the Court of Appeal, there had already been considerable delay. The doctors had been told twice that the case was not to proceed against them. The GMC had already apologised for the delay, and it is also quite apparent from this judgment that the Court of Appeal were aware of the delay.
I now refer you to paragraph 11 of Lord Justice Auld’s judgment. Paragraph 11 begins:
“There was considerable delay on the part of the GMC in responding to Mr and Mrs Henshall’s complaints. Instead of proceeding to investigate the complaint through its established machinery, it decided to await the publication of the Griffiths Report, commissioned by the NHS Executive in February 1999.”
For these purposes I do not need to read on further.
MR FORDE: I would like Ms Sullivan to read the whole paragraph.
MS SULLIVAN: So be it:
“The panel’s terms of reference were ‘to look in the general framework for the both the approval and monitoring of clinical research projects in North Staffordshire, that is, to examine the design of trials, including the CNEP trial, as distinct from clinical issues arising from them. In relation to the CNEP trial, the main conclusion in the Griffiths Report published on 8 May 2000 (some ten years after the local ethics committee had approved it) was that its design did not match what would at the time of publication be considered best practice. Professor Griffiths also made it clear in the report that the Panel had not sought to determine the truth of allegations of poor practice or to apportion blame if practice could have been better, or to determine whether any actions taken at the end of the trial were wrong.”
Can I then refer you to another paragraph in that report, paragraph 18, which is just on the next page. Lord Justice Auld is dealing with the chronology. In paragraph 17 he refers to the Hull report, but it is paragraph 18 that I wish to draw your attention to, and the fact that:
“The GMC had yet to consider Mr and Mrs Henshall’s complaints”.
Mr Foster quoted to you in paragraph 76 of this judgment, so perhaps we could turn forward to paragraph 76. Lord Justice Auld was the dissenting judge. Having rejected the ground of appeal referred to, he said at paragraph 76:
“In consequence, I would dismiss the appeal. I add that, given the considerable lapse of time, 13 years, since the CNEP trial and the considerable body of medical exploration that it has engendered to little or no identifiable advantage to Mr and Mr Henshall’s complaints, and to much unjustified professional disruption and personal distress of the doctors, I would, in event have been inclined to refuse relief in the exercise of my discretion.”
I quote you that because it shows that delay was very much in the mind of the court. Although this was the dissenting judgment, this was the lead judgment in that the other two lord Justices agreed with Lord Justice Auld’s factual analysis, but they differed in their conclusion because they said the case should go back for consideration by the PPC.
What follows from that is that the majority in the Court of Appeal were fully aware of the delay, fully aware of the distress to the doctors, and yet, nonetheless, they exercised their discretion to remit the case. They have to decide whether it is equitable to grant relief. It is not automatic and, therefore, prejudice is very much part of their considerations.
Could I make reference to the court’s discretion in relation to judicial review. It is referred to in the White Book at 54‑1‑10 which, in relation to the court’s discretion, says:
“Even if the claimant, [the Henshalls] establishes one of the grounds of judicial review, the court is not bound to grant a remedy. The remedies are discretionary and, whilst a court will usually grant an appropriate remedy if the claimant establishes that the public body has acted unlawfully, there are cases where the courts may decline to grant a remedy. Grounds for refusing to grant a remedy include the following: where there was undue delay in making a claim but the courts have extended the time limits, the courts may still refuse a remedy if granting a remedy would cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.”
So the court has a discretion, which was exactly what Miss O’Rourke, who was instructed on this appeal on behalf of Drs Spencer and Samuels, went back to the Court of Appeal to do.
If you just go to the reverse of the judgment of 31 January 2006, you will see in the first paragraph, five lines down, that at the request of Miss O’Rourke on behalf of Drs Spencer and Samuels, the court had reconvened to reconsider, in the case of those doctors, whether it has, and if so whether, it should exercise a discretion to remit. Having heard arguments they did not change their minds.
The reason they did not is because, as Miss O’Rourke said to you at the outset of these applications, even though there has been what she described as inordinate and inexcusable delay, Dr Southall can have a fair trial, so can Drs Spencer and Samuels. With the exception of the specific allegations in relation to Dr Spencer, which relate to Patient 6, all the doctors face the same allegations. There are just fewer of them in the case of Dr Samuels. So if Dr Southall can have a fair trial, so indeed can they. The reason they can is because there is no prejudice of a degree to prevent that happening.
If I can just go through some of the points that were made on the question of prejudice. Of course recollections can fade with time, but that can be dealt with in the hearing process. In any case, where there is delay, the Legal Assessor has to direct you about the effects of delay and how to approach it, so there is the safeguard for the doctors.
Reference has been made to what were the standards at the time. The experts will tell you, and point you to, what the standards were at the time. That is what they have been asked to address in their reports. There are publications which indicate what the standards were at the time.
You will hear from a number of witnesses who those instructing have managed to trace. They will be called and will give evidence, obviously to the best of their recollections. As was demonstrated yesterday, their evidence is by no means entirely unfavourable to the doctors in this case. They are therefore able to defend the allegations despite the length of time. I think I am right in saying that no particular missing witness has been specified in the arguments put before you.
I think Mr Foster yesterday quoted one witness who made a statement ten years previously, so there are earlier, more contemporaneous recollections in some cases in any event. As I said, the documentation from the trial, including correspondence from the ethics committee and correspondence between the doctors, has been retained. You will be hearing from a witness called Barbara Cannings from North Staffordshire who began work there it is right to say in 1994, but she says she first became aware of the CNEP trial when the Griffiths inquiry started. At that time, because of the Griffiths inquiry, she was asked to locate and photocopy all the local research ethics committee papers in connection with the CNEP trial and supply those to the Griffiths inquiry. That is what she did and we have those papers for you, together with all the scoring sheets which were retained and have been obtained through Dr Southall.
We also have the medical notes for Patient 6. We have a file of those which have been retained for some time, no doubt because of the proposed civil proceedings. I think I am right in saying that the only item that has been identified as missing, and I agree this is missing, is the ultrasounds for the patient. What we have are the radiologists’ written reports in the records of those ultrasounds. It is the content of those reports that the Council are saying should have been communicated to Mr and Mrs Henshall.
You have also seen some of the letters that have been written on behalf of the doctors over the years responding to the various allegations. They have been able to respond in some detail to them. So, the Council would say, there is not such prejudice as to prevent the holding of a fair trial because of delay.
I have already referred to you to the Legal Assessor advising on delay and how to approach it. He will also advise, where appropriate, about the admissibility of evidence. The doctors are also protected by the burden and standard of proof. The burden is on the Council and the complainants, and the standard of proof in this case is the criminal standard ‑‑ you have to be sure before you can find any allegations proved. That is a high burden and standard and a great protection for the doctors concerned.
You also have within the hearing process the fact that the rules provide for submissions being made at appropriate stages. It is then, the Council say, that you should consider the adequacy and strength of the evidence, not now when you have not even seen it in any form at all. It is for you to consider and evaluate the competing expert opinions to which I referred earlier. You will be hearing from three experts in the course of this case. They will not all say the same about certain matters and it will be for you to determine whose expertise you prefer in any given case. Again, the Legal Assessor will advise you, but you are not obliged to accept expert evidence, again another safeguard in the hearing process.
Had this case been without foundation, as seemed to be claimed this morning, or in part without foundation, it is open to anyone under the rules to apply for cancellation of the case. That is not something that has occurred in this case. There is power under rule 19 in the rules in relation to that.
The Council’s submission in relation to the points made by Mr Foster are that it is not the correct time now for you to consider the merits of the case when the application was in fact put before you yesterday on the basis of delay, saying that, in so far as the merits of the case were concerned, that should affect you in exercising your discretion and indicates motive. How can you judge motive without hearing or seeing the evidence in the case? How can you properly take that into account in exercising your discretion?
The Council’s submission in relation to that is that that is not something that you should take into account at this stage. An application has not been made as to there being insufficient evidence. As the Legal Assessor said, were such an application to have been made it would be necessary for you to see it all, but that is not the way in which it has been approached. That was just raised this morning prompted by a two paragraph piece of paper indicating some matters raised by Dr Stimmler which I think in any event are referred to elsewhere, but so be it. That is not the way in which this application has been put and it is, in the Council’s submission, not appropriate to take into account the merits of the case. The rules provide for that at other stages.
Questions were also raised yesterday really in relation to the charges about what do they relate to and it seemed to be suggested that the defence did not know what the case was. For example, Mr Forde said well, what is the Council saying about blood pressure? He knows what the Council are saying about blood pressure because he has Dr Stimmler’s report. Dr Stimmler, at page 18 of his report, when asked to comment about whether Patient 6 was appropriately monitored, Dr Stimmler says that he could not see one blood pressure measurement which, in an infant that was being ventilated and has respiratory distress syndrome, represents a poor standard of care. It is possible that blood pressures might have been recorded on some sheets that I have not been able to discover, but blood pressure measurements are certainly part of the protocol of the trial. He knows what is being said, that there are no blood pressure measurements recorded in the notes for this child.
MR FORDE: That is not what is being said. I hesitate to interrupt, but I am asking, and I make this absolutely clear, for periods to be identified between 14 December when this child was born and 7 January. That is conspicuous by its absence. All we have here is a suggestion that whilst the child was ventilated was but for a few hours during that period there were no blood pressure measurements. I am grateful to my learned friend for indicating that this doctor appears to countenance there being notes he has not seen, because that is a concern of ours that there might have been one or two but those could have been lost. We still do not have chapter and verse in relation to the specific periods and we are still awaiting that. It makes it difficult for us to know what case we have to meet.
The other point is my learned friend well knows that this report was drafted before the charges of 8 April and since the end of March Dr Stimmler has been suggesting that he could not support his original contentions in relation to the taking of blood pressures and he required that the charge be slightly narrowed from that which was originally proposed. We got that yesterday from 28 March attendance notes.
MS SULLIVAN: Not in relation to blood pressure. That was in relation to hypoxia. His position is clear from that report that there are no blood pressure readings. That was also the position, as Mr Forde will be aware, when civil proceedings were in train because the notes were looked at then in relation to this child, so that is way back.
Sir, I was just dealing with that issue in relation to the charge raised by Mr Forde. Can I now deal with the points that were raised in Mr Foster’s skeleton argument about the number of people required for consent. I have referred Mr Foster to the evidence in this case which is that in the limb of the trial carried out at Queen Charlotte’s Hospital, one day, Dr Raine, took consent except when he was on leave or away for some reason.
We know that in North Staffordshire 34 people were involved in taking consent for babies to enter this trial. We know that because Dr Southall carried out an audit of how many people had been involved and that many people had been involved covering a whole span, as you can imagine, of clinicians. To say in the light of that that too many people have been involved in consent I think makes quite clear what the Council’s position is and really the key to it, as I am sure Mr Foster realises, is this, that in order for any doctors to be consenting patients, especially for a trial, they need to be adequately trained, and so therefore it is not a case of being able to specify an exact number; it is a case of saying to Mr Foster that really what should have happened is something more akin to what happened in Queen Charlotte’s where a senior doctor was involved in the consent-taking process.
Those in fact yesterday were the essential complaints about the lack of specificity of the charges, so the Council would say they have been answered and they can be answered. It is not really something again that you need to take into account on this or should take into account on this application. The matter of Dr Samuels’ involvement as the administrator was raised yesterday and in the opinion of Dr Nicholson, Dr Samuels’ assistance to Dr Southall in this trial, which was a considerable involvement – he was very senior at the time and it was not long before he became a consultant himself – that included an acceptance and sharing of all responsibilities relating to the trial which would include responsibility not for actually obtaining consent, but for ensuring that there were procedures in place to obtain parental consent, because that is what is alleged in relation to all of the doctors in this case.
There are two other matters that the Council would say are not relevant to your considerations. The point was made on behalf of Dr Samuels that he had had no opportunity to deal with some of the allegations or an allegation. Can I remind Mr Foster of the rules. Rule 11(2) of the Old Rules entitles the solicitor or the complainant where a case has been referred to include further allegations in the charge if such evidence emerges in the course of the investigation, even when they have not been referred to the PPC or form part of the subject of a determination by the PPC. There is no requirement that Dr Samuels has to be given an opportunity to respond to any allegations that are contained within the Notice of Hearing. In any event, you may wonder whether the allegation that was quoted is really so different in any event from the one which was originally included.
Lastly on the question of what you should take into account, the Council would say the references to the five-year rule are not relevant because it does not apply to this case. This case is governed by the rules that were extant at the time it was instituted; the rules are not retrospective in operation. That has to be right, sir, because otherwise that would have been advanced in the Court of Appeal and dealt with by them. You have the judgment which you will be able to read. There is no mention of it.
Really what it amounts to is this. No case should be stayed or stopped on grounds of delay unless it amounts to an abuse of the process, so unless a fair hearing is impossible. There is no prejudice here that cannot be accommodated by the trial process. I think Mr Foster used the expression “an affront to justice” that the doctors were told that the case was not going ahead. Sir, the Henshalls had every right to challenge the decision-making process, and not only had they the right to do that, they did it successfully. Just think of the consequences of saying a case cannot go ahead because the doctors have been told by the GMC that they are not pursuing it. It would prevent the courts – the Court of Appeal in this case – giving the remedy that they gave to the Henshalls. Those representing the doctors would be fully aware that that is something that can occur, that decisions can be judicially reviewed, and you must think that it would follow from that that these doctors must have been advised of that possibility.
At the end of the day the Court of Appeal, by sending this case back, have determined themselves that it was not an affront to justice. They rejected Miss O’Rourke’s submissions that they should exercise their discretion to refuse a remedy because of the delay. That, you may consider, is key to Miss O’Rourke now on behalf of Dr Southall indicating she is not instructed to argue that these proceedings are an abuse. That speaks volumes. They are not an abuse because these doctors can have a fair trial because there is no prejudice that cannot be dealt with within the trial process. It is very much in the public interest that these allegations, about which Mr and Mrs Henshall understandably feel very strongly, be heard.
Sir, that is the response that I would make on their behalf and on behalf of the GMC to the application that has been made on behalf of these doctors.
THE CHAIRMAN: Thank you very much, Ms Sullivan. Do any Panel Members wish to ask any points of clarification?
DR OKITIKPI: You just said that the prejudice can be dealt with. I think you meant prejudice cannot be dealt with?
MS SULLIVAN: If there is prejudice it can be dealt with within the trial process. That is what I meant to say certainly.
DR SHELDON: You have not, as far as I heard, dealt with Mr Forde’s comment in his paragraph 3.16 that these ten complaints that the Henshalls brought, which is what the Appeal Court was considering, most of them are not now being dealt with, so does that make a difference the number of complaints made by the Henshalls that are now actually on the charge sheet?
MS SULLIVAN: In my submission it would not make any difference to the principle. In practice one could say that because there are fewer allegations there is likely to be less prejudice to the doctors and so to that extent it is helpful to them that there are fewer allegations that they have to meet, otherwise it would not, in the Council’s submission, be a material consideration for you at this stage as to whether to stay these proceedings or not. That would be the way in which I would respond to that. I am sure the Legal Assessor will advise you also as to how to approach it.
THE LEGAL ASSESSOR: Do you concede that there is any unjustifiable delay by the GMC within Article 6?
MS SULLIVAN: They themselves have conceded that there was excessive delay. As I said at one point, I am not seeking to go behind that. All I am seeking to say is that when they have said there has been excessive delay, they have not actually said there is excessive delay throughout. They are still saying that there would have been reasons for delay but I accept that they have said that there is excessive delay and that must apply to the part of the time covered by Article 6, though not its entirety.
THE LEGAL ASSESSOR: Then it becomes important to know what the period of delay is that is excessive or culpable, and then, if there is culpable delay by a public authority, it has to be marked somehow. Mr Forde’s point is that one cannot mark it as one would in a criminal trial by a reduction in sentence or something like that.
MS SULLIVAN: I do not necessarily agree with that submission that he has made. Delay is something that could be taken into account by a panel in a variety of ways at a variety of different stages.
MR FORDE: Could I ask for something to be stated on the record? I want to know whether my learned friend has specific instructions from the General Medical Council that, in cases involving delay, it is appropriate for a panel such as this to impose a lesser sanction than they otherwise would have done. That is the point I am making. I quite accept that the learned Legal Assessor can give guidance in relation to delay and the submissions of no case can be made, but specific to sanction. We would all be very interested to know, not only for this case but in future cases, whether the General Medical Council’s position is in old cases that you as a panel could impose a lesser sanction by reason of delay?
MS SULLIVAN: I have no specific instructions in relation to that. I was merely thinking out loud in relation to it. I think the point that I would make is that it is not enough for there to be excessive delay and therefore a breach of Article 6. It is still necessary to go on, as I have set out in the legal framework, to consider whether a fair trial can be held.
THE LEGAL ASSESSOR: Certainly a breach of Article 6 does not necessarily make the case hit the buffers, but the indications are that some marker that there has been a breach should be given and some of the cases say the mere finding is sufficient vindication of the person’s rights. I would just like to identify so that one can go on to that what would be the periods which you certainly would accept were unreasonable or excessive in this context. Any delay caused by the oversight in submitting 1600 pages is presumably culpable?
MS SULLIVAN: Yes.
THE LEGAL ASSESSOR: That would embrace all the time devoted to trying to sort out the legal ramifications.
MS SULLIVAN: Yes. I think I have tried to identify that at some stage.
THE LEGAL ASSESSOR: Is the fact then that the Preliminary Proceedings Panel got it wrong culpable delay and anything flowing from that?
MS SULLIVAN: It does not seem to me right that that should be culpable delay because it is an exercise of discretion, albeit they applied the wrong test the Court of Appeal found, but of course that is no fault of the doctors, but it is part of the decision-making process that can be cured by an appeal. I would have thought that was part of the judicial process.
LEGAL ASSESSOR: That is something that I would like to hear Mr Foster on later.
THE CHAIRMAN: Mr Forde, no doubt you have a response.
MR FORDE: I do. The only question is whether you want to hear it now or after a coffee break.
THE CHAIRMAN: I was going to suggest that we have a break now and come back at half eleven. We will hear from you then.
(The Panel adjourned for a short time)
MS SULLIVAN: I wanted to correct something that I said earlier. I have been told that there is a document suggesting that Mr and Mrs Henshall knew about their children being involved in a trial by 20 March 1996. I do not know how soon before they knew, but I think that it is important to indicate that to you, so that the position is not in any way misrepresented.
THE CHAIRMAN: The date you mentione was?
MS SULLIVAN: I am being told 20 March 1996. I think that I said 1997. There is a document suggesting that they knew by that stage.
THE CHAIRMAN: Thank you very much.
MR FORDE: I deal with the last point. As you are aware, we are incredulous at the suggestion that this family did not know that Patient 6 was involved in a CNEP trial. As you know, her sibling died ten months before, and the appearance of the equipment should have made it manifestly obvious. That is an issue. Be that as it may, I deal firstly with what my learned friend said about the law, and then I will deal with some of her submissions about the prejudice that we clearly were experiencing.
We are now agreed that, so far as time is concerned, under Article 6 the General Medical Council first indicated to these doctors in 2001 that they were interested in them potentially facing charges. I have dealt with that in my skeleton argument. It is 3.4, 30 March 2001. That is the time from which we say the Article 6 delay arises, so you have something over seven years.
It cannot be right that the deficiencies of the General Medical Council in relation to the 1600 pages of documents and their inability to control the Preliminary Proceedings Committee in a way that was satisfactory to the Court of Appeal can count against this doctor; so the whole matter, as a matter of fact, should be included as far as Article 6 delay is concerned, in my submission to you. At best, the procedural shenanigans could be regarded as neutral, but you will be aware of the fact ‑ this is paragraph 4 of C1, Miss Sullivan’s skeleton argument ‑ that under the ECHR in assessing the reasonableness of any delay, regard must be had to the complexity of the case. This is said to be a complex case; we do not accept that. The applicant’s conduct ‑ here you do not have any conduct on the part of the doctors which the General Medical Council are advancing in support of any submission that we have contributed to the inordinate delay in this case; Ms Sullivan was entirely silent on that issue. And, most importantly, the manner in which the matter was dealt with by the administrative, here authorities. You assess, we quite accept, the reasonableness of the duration on a case-by-case basis. We have always accepted that the threshold is high, and that the burden of proof is on us on a balance of probabilities.
Simply put, no professional within or without this room, would relish the prospect of dealing with allegations as old as these. The real deficiency of the General Medical Council was, when it realised in 1997 that a complaint had been made, to sit on the case that was by then already approaching five years old. If ever there was a case that should have been dealt with with alacrity, it was this case.
My initial bundle, which is D(a1) indicates 18 March 1997, nearly five years on. It is clear from the second paragraph, the meeting having been arranged by Dr Hughes, who is not a witness in the case, it should be noted that until the morning of 18 March 1997 Dr Spencer did not appreciate that the case was the subject of ongoing medical/legal proceedings. So to suggest, as my learned friend does, that the Henshalls, I believe, having indicated ‑ we have not see the documentation ‑ that they were interested in pursuing legal proceedings in 1994 or 1995, could have caused my client, who would never have been sued in an individual capacity anyway, to scurry around the medical records department, scanning departments, retrieving nursing rotas, clinical rotas, outpatients rotas and the like is frankly nonsensical. He, as I indicated ‑ this will now be approaching eight years after the application, which was made in November 1989 ‑ was unaware of the fact that this was being contemplated. As a matter of form the responsibility of defending the proceedings would have been that of North Staffordshire, the doctor then I think would be covered by Crown indemnity.
It is believed that some of the notes may have done missing as a result of the Trust’s solicitors’ involvement with the Henshalls. I think they have instructed several, and, as you know, several experts. So that is not a point that can be taken against this doctor.
It is quite clear that matters have progressed in a way that was not expected at the time the initial concerns were notified. It ill behoves the General Medical Council to suggest that the recently drawn allegations... I remind you that they are April of this year; the witness statements we have been served predominantly date from the last couple of months of 2007 and early 2008, whereas Mr Foster indicated many witnesses simply say they cannot remember. So, as far as the common law is concerned, my submission is that you look at the whole of the period and ask whether a fair hearing can be conducted at this distance in time.
One of my main submissions that does not appear to have been answered by the GMC is to be found in my paragraph 1.5. This a very serious proposition on my part. The point I make is that it does not really matter whether some of the notes are available; we believe that minutes of ethical committee meetings are missing, despite what is said by an employee of the Trust who says that she gathered documentation together for the Griffiths inquiry in 2000. You know, and it is an agreed fact, that she did not start working in the Trust until 1994. We are talking about applications in 1989 approved in 1990. The difficulty ‑ and it is my submission this is a difficulty which is manifest in the Stimmler attendance notes that we have ‑ is in recalling, as I have put it, “subtleties, nuances and prevailing medical culture”. There will always be a risk of those called on behalf of the General Medical Council trying their level best to reconstruct events ‑ and we know that human memory fails. Those of us who used to practise in the county court regularly encountered the following scenario: witness interviewed by police officer; heard bang, turned around, saw cyclist’s front wheel under car; did not witness accident. He comes to court three years later and saw the cyclist being knocked off by the driver of the car. Human memory plays tricks. That is the reason for the five‑year rule. I have said that none will be able to without consciously or unconsciously importing into their evidence acquired knowledge or current views and values. That, in my submission, is an undisputed fact.
It is of interest that in the Court of Appeal case with Lord Justice Woolf, as he then was, presiding in the case of R v Smolinski, they decided that they were going to try to put an end to the industry of alleged sex offenders, saying, “This all happened so long ago I cannot remember whether I indecently assaulted these two young women or not”. That is a million miles away from the position here where you have health professionals doing their level best in front of their regulatory body to reconstruct events. I maintain that the approach you should adopt in a case such as this is the one I have set out in my skeleton argument, I think under section 5.1. The Dyer v Watson approach is the one that on behalf of Dr Spencer I would commend to you.
It is all well and good for the criminal courts to suggest that you listen to the evidence of young children and then decide, now adults, whether or not they can be believed. That is not something that is important here. This is a case where we are concerned about missing documentation and the prevailing culture of the time, where an alleged sexual offender is being prosecuted, and one is thinking of a case which is 56, 26 or 30 years after the event, the prevailing culture has always been that one does not indecently assault young children.
What the court decided at the end of Smolinsky, which you have as C3, is:
“As this Court appreciates, it is sometimes very difficult for young children to speak about these matters and therefore it is only many years later that they come to light”.
Therefore, in my submission, that case does not assist you at all.
Similarly, in relation to the Court of Appeal judgment which you have as C4, a number of important comments were made by their Lordships. I footnoted in my skeleton argument the fact that there were ten matters of complaints before their Lordships. That is at the bottom of page 9. You now helpfully have them supplied to you by Miss Sullivan. One, an allegation of deception. That is no longer maintained in relation to the local Ethics Committee. That was something which had been around in 1997. We may have been able to do something about that. Performing unnecessary Caesarean sections specifically in order to ensure an adequate supply of premature neonatal babies for the trial. That is a scurrilous allegation. It is no longer pursued, but one to which the doctors` minds were directed from 2001 onwards. The forging of Mrs Henshall’s signature is no longer pursued. The informed consent matter is not pursued in quite the same way, and certainly not specific to the Henshalls. Number five is no concern, from your perspective, regarding the other child and is no longer pursued. Number 6 is pursued, 7 is pursued, and 8, 9 and 10 are not, including a conspiracy to misreport post‑mortem results with a view to preventing any death being attributable to the trial.
Conspicuous by its absence is any specific allegation as you now have here in relation to the ultrasound scans which causes a particular difficulty, the alleged hypoxia on a Tuesday in December 1992. There does not appear at that time to have been placed before their Lordships the concerns about the inappropriate delegation to too many members of staff. You know that Dr Stimmler does not support that. He says that babies are born 24 hours a day. And there is nothing about surfactant, which is number eight, so far as the charges against Dr Spencer are concerned.
What that means is that since we have had theses matters specified on 8 April and the draft charges and the Preliminary Proceedings Committee charges have changed dramatically over time, and you can see that by going through by bundle. But it is only once we get the charges at this distance in time that we can really address our minds to likely witnesses and likely defences. We might have broad themes, but not much beyond that. There is where there is the real prejudice in terms of delay. It simply is not good enough to say that we should be able to find witnesses now. Suggesting that we have not identified any particular witness who is dead, deceased or incompetent, again, as a matter of common sense, this number of years after the event is nothing to the point. It is a bit like saying, “Where did you lose your keys?” If you knew that they would not be lost. We cannot remember all the main actors in this trial at this distance in time. We might have been able to in the middle or early 1990s.
It is clear that Lord Justice Auld was critical of the delay. That is why I required Ms Sullivan to read the whole of paragraph 11. If you read paragraph 17, he is setting out the Hull and Griffiths inquiries and the timing of those. It is my submission as an aside that the public interest has been more than satisfied by those two inquiries, and there is no real public interest in continuing with this one. The judge says this at paragraph 18:
“Meanwhile, the GMC had yet to consider Mr and Mrs Henshall`s complaints”.
So they sat on it for something in excess of three years. I maintain that criticism because I am more than happy to take you to certain aspects of the chronology that my learned friend has very helpfully supplied to you as C2. It makes instructive reading.
In 1994, it would appear that the Henshalls were asking for an investigation of a medical negligence claim related to this trial and to the scans. That is something almost approaching 14 years ago. In my submission, it is simply unsustainable to suggest that the time does not run in relation to, certainly, the latter paragraphs of our charge 18, 19 and 20, from then. The scans were forwarded to the expert ‑ as we know they are now missing ‑ as long ago as 19 December 1995. Again, under the common law, we say that time clearly runs from then.
The GMC recorded a complaint at the top of page 2 on 28 April 1997. For the next two or three years lot of letters are written, no action is taken, and in fact the GMC is entirely reliant on the North Staffordshire hospital to try to conduct bits and pieces of inquiries throughout 1999. It is clearly waiting, as it must have informed Lord Justice Auld, for the completion in December 2000 of the Griffiths report.
That is an unacceptable position, that delay between 1997 and 2000, and highly prejudicial to my client against the background of the Henshalls taking nearly five years to make a complaint to the General Medical Council. It is also of interest to note, when my learned friend is indicating that the court had a discretion not to accede to the judicial review application if they were concerned about delay, clearly that was a concern of Lord Justice Auld, it is conspicuous by its absence in the judgments of the other two judges. What they decided overall was the concern for them was the PPC applying a wrong test, weighing competing claims of Hey and Chalmers, without looking at the Griffiths report, and Dr Southall’s stance that he would not allow his comments to be disclosed.
That is why it is perfectly understandable that Miss O’Rourke, who at that time represented Drs Spencer and Samuels, effectively said that, “The main thrust of your judgment does not appear to concern my clients”. A very brief judgment was given suggesting, not only that the majority found reliance on the Hey and Chalmers article to be in error, but that may well have been, in terms of the articles, paragraph 2, something that loomed large in the consideration of the PPC and not in an insignificant way in respect of Dr Spencer and Dr Samuels. The court said that the matter should be remitted with the utmost expedition.
My learned friend appeared to suggest that they were sanctioning a referral to the Professional Conduct Committee at on stage. I am sure she suggested that in error. They were simply saying, “Go back and make your decision again”. If you look at the decision of the PPC which led to our ultimate referral, you will find that they fell into precisely the same trap as the previous one. There are many references to competing academic claims.
The concern for us is that, because those matters to which we were referred bear little relation to the current charges, effectively we have started afresh in looking how to defend these charges since April 2008. We were hoping for, and I know Mr Foster supports me in this hope, the Further and Better Particulars we have been seeking since we received the charges. We still do not have them.
Turning to the charges, it is still of importance to us to know what the General Medical Council’s case is, for instance in relation to charge 17. I only deal with that one by way of illustration. Patient 6 was booked in under the care of Dr Spencer on 14 December 1992 and she was discharged on 7 January 1993, a three week period.
I will read to you the extract from the Stimmler report dealing with this matter. He says:
“I could not see one blood pressure measurement which in an infant that was being ventilated and has respiratory distress syndrome, represents a poor standard of care. It is possible that blood pressures might have been recorded on some sheets that I have not been able to discover, but blood pressure measurements are certainly part of the protocol for this trial.”
So, there is doubt being expressed about the availability of records. One reading of that criticism, and this is what we would seek elucidation upon, is that the blood pressure criticism in paragraph 17 is supported only whilst the infant was being ventilated, not for the whole three week period. It is something of importance to us. As you will well understand, Dr Spencer and I have been looking at the records trying to decipher doctors’ signatures, which is not easy at the best of times, to see if he is likely to have been on duty during the twelve hours, we think on 16 December, when this child was ventilated. We are struggling at the moment, in a sense, to prove the negative – that he was not there. That is something we ought to be in a position to do.
Similarly, in relation to charges 18 and 19, my learned friend is absolutely correct to suggest to you that we have, I think at page 161 and 162 of the relevant bundle, the ultrasound reports. What we do not have is any indication which may or may not have been apparent from the scan itself, as to when that report found its way in to the notes, who was informed of the appearances on the scan, and who this person was, it would appear, from the correspondence I read to you yesterday, was present with Mrs Henshall at the time of one or both of the scans. That is something which causes us a real difficulty.
My learned friend in her submissions to you accepted that recollections fade and indicated that the safeguards were sufficient by reason of the direction you are likely to get relating to delay if we proceed in this matter, and also by reason of the standard of proof. I have said specifically in my skeleton argument, that that does not provide sufficient safeguard. One can imagine with the publicity that this case is likely to attract a member of nursing staff reading a report and perhaps a week or two after any Determination saying, “I could have helped you, I was the person who spoke to Mrs Henshall, that is my signature, I remember popping the blood pressures into my pocket I probably did not put them into the notes”. These are the sorts of possibilities which are truly concerning from Dr Spencer’s perspective.
The suggestion that the Court of Appeal considered delay I have dealt with. My learned friend did read an extract from the White Book which dealt with the delay in the bringing of the claim. My understanding, and I am happy to be corrected, is that that is not a reference to the delay in terms of the substantive case here – in other words 1997 to 2008, or 1989 to 2008 – it is the delay in seeking the remedy of judicial review, because it is described as “the claim”, and the claim is the judicial review claim. There is no specific reference to the age of the events, because all judicial review achieves, if it is successful, is a court saying, “Please make your decision again”. It is the decision that is being attacked in terms of delay rather than that being a reference to old cases being of such concern that the court itself ought not to give a remedy.
Clearly Lord Justice Auld felt, as I have quoted in my skeleton, that this was not going to be a situation which would satisfy the Henshalls in any event. I have quoted that at paragraph 6.7 and you will find, within the judgment, the relevant paragraph is paragraph 76, that he is the only judge who appears to have dealt with the exercise of his discretion given the considerable lapse of time.
It is not dealt with, in terms, by Lord Justice Parker. His judgment is one and a half pages, but you can see Lord Justice Parker’s reasoning, which is at paragraph 101, Professor Southall’s refusal to relay his responses, and paragraph 102 the Hey and Chalmers article. That really founds the basis of the decision made by Lord Justice Sedley, who, interestingly enough, said this, and this underlines the fact that it was really an invitation to the Preliminary Proceedings Committee to reconsider matters:
“I do not consider that this court can say that the medical literature disposed of any possible question of serious professional misconduct. Nor, however, can I accept Mr Havers’ submission that it manifestly required a referral to the PCC.”
So the court was not prepared to adjudicate on that matter.
They said to do so would risk substituting the court for the PPC. Sometimes judges are a little bolder, but they wanted the decision remade and the only delay, so far as the rules were concerned, would be the delay in applying for judicial review, which normally requires an application within three months of the decision that was made in 2004.
Finally, the only other point I make on Dr Spencer’s behalf is that I very carefully, with the exception of the disclosure to me of certain aspects of this case thwarting Dr Spencer’s medical career, set out the prejudice in paragraph 6, on pages 14 and 15, which I say this doctor will suffer as a result of the age of this case. It did not appear to me that those matters were specifically dealt with. They were dealt with in a very generic way. They are checks and balances, they are safeguards, submissions of no case can be made etc.
I maintain my stance on behalf of this doctor that there is severe prejudice here and it is, as outlined with the one addition, the career ambitions, in paragraph 6, pages 14 and 15, of my skeleton argument. That is all I wish to say by way of reply, and I extend an invitation to the Panel. If there is anything the Panel need by way of clarification, I am happy to assist.
THE CHAIRMAN: Thank you Mr Forde.
THE LEGAL ASSESSOR: On page 14 of your skeleton, where you are talking about prejudice, almost all the allegations are of evidential prejudice. Ms Sullivan’s point was that that is all that is relevant. The question is, can we still have a fair trial? It is true that at the second bullet point from the end, you talk about the stress, you have added to that the career blight, and there is the point about the balance of publicity. Do you accept or not, Ms Sullivan’s point that, on a stay, it is actually evidential prejudice which is relevant, that is why she did not respond in detail, I think?
MR FORDE: Yes. That may be right but, assuming that is the case, I would readily concede that if you are looking at a stay on the basis of delay, your primary concern should be the ability of the doctor to defend himself and cross‑examine witnesses adequately, and the ability of the doctor to be able to furnish you with relevant contemporaneous documentation and, further, the abilities of any expert called to truly – I am not suggesting they would be dishonest but truly – reconstruct the prevailing medical culture at the time. Those are the main areas. I certainly would not be inviting you to say that the stress of the proceedings and attendant publicity was reason enough to grant a stay. I am sure Ms Sullivan would be full of consternation if that was the basis of your decision. Evidential prejudice should rule the day.
THE CHAIRMAN: Mr Foster.
MR FOSTER: However, sir, all those other sorts of prejudice – stress, effect on a doctor’s career and so on – are relevant to the issue of legitimate expectation. I have set out at paragraph 3.1 of my skeleton argument, the comment from Lord Justice Staughton:
“It seems to us that, whether or not there was prejudice, it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.”
One of the issues which you will have to consider, is the one which is averted to by Ms Sullivan in the final paragraph of her skeleton argument. She says that it is in the best interests, it is in the public interest, to allow these proceedings to go on. One of the issues which you will have to weigh, in deciding whether it is in the best interests of the public at large for these proceedings to go on, is the effect which these proceedings have on the doctors concerned. Under that umbrella, as Lord Justice Staughton said, you can take into consideration the other aspects of prejudice.
On the question of delay, I respectfully adopt everything my Mr Forde has said. The response of Ms Sullivan to our contentions on delay is basically that there are sufficient procedural safeguards for the undoubted inordinate and inexcusable delay not to be a danger. In particular, she highlighted the burden and standard of proof, and the fact that we would be able to make a half‑time submission, if the evidence were really so weak by reason of delay, that case should not go any further.
If that is her only response, it is a poor one because it could be said in every case in which there has been inordinate and inexcusable delay that these procedural safeguards are in place. If that were a sufficient answer, and it is Ms Sullivan’s only answer, no submission on the basis of delay would ever succeed. They plainly do and this is a classic case where they should.
Ms Sullivan can gain no comfort from what the Court of Appeal said in the two main judgments. There is not a word about delay. The case, as I understand it, was not put to the Court of Appeal on behalf of the practitioners on the basis that discretion should not be exercised because there had been delay. The only comment about delay is in the judgment of Lord Justice Auld at paragraph and it is wholly against Ms Sullivan. He says that the delay is something which was inexcusable and should weigh heavily in deciding the outcome of that application, and by extension too, the decision which you have to make.
It is interesting and significant that Ms Sullivan did not say anything whatsoever on the issue of legitimate expectation. There is a good deal in my skeleton argument about it; there was not a word. There was not a word because, of course, there cannot be a response.
THE LEGAL ASSESSOR: I had a question about that. I remember distinctly – I do not have the transcript – thinking yesterday that you had moved very quickly over one aspect of legitimate expectation which is at the top of page 6 of your skeleton. The quotation of the case starts at the bottom of page 5:
“...an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment.”
We find in the most recent review at the bottom of page 6, that:
“These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been unequivocal representation...”
which you have argued is the letter, and (ii) that the defendant has acted on that representation to his detriment.
MR FOSTER: Yes.
THE LEGAL ASSESSOR: You were very clearly making a case yesterday that he had detrimental effects imposed on him, but not that he had acted in reliance. I wonder if you could identify for the Panel the actions which your doctor took in reliance on the representations, and then the final sentence there:
“Even then, if facts come to light which were not known when the representation was made, these may justify proceeding …”
One of the facts is that 1600 pages have been overlooked at one stage.
MR FOSTER: There are two broad actions in reliance. The first is failing, because of the representations which have been made, to gather the evidence which would now be helpful. Once all the practitioners were told that they would not have to face the charges, they assumed that there was no need to preserve documents, namely to preserve diaries, namely to keep in contact with witnesses and get statements from witnesses who might be helpful. That is an action which is of course more conveniently and more conventionally dealt with under the general head of delay.
THE LEGAL ASSESSOR: It is not my duty to stray into fact but I think it would help the Panel if, firstly, if this chronology is right, the first notification that the GMC would not continue was on 15 March 2002, and then by a letter dated 2 May. You seem to be putting a lot of stress on the period of six week delay there. Then in the ordinary way of the further decision that was indicated, and then subject to judicial review, I do not actually know when the judicial review was started, but the usual period is within three months of the communication of the decision seemed to be comparatively short periods.
MR FOSTER: What I would say is had there not been this representation there may have been recollections which would have been refreshed for the purposes of proceedings, there may have been documents which were retained, but all of those sorts of issues are more conveniently dealt with under the general head of delay. The better point is in relation to the act – it is properly described that way – of getting on with their lives. They relied on the assertion that they would not be prosecuted by getting on with their medical careers. Those hopes of being able to continue unpersecuted by the GMC were dashed on two occasions. That, in my submission, is plain detriment within the meaning of this head of legitimate expectation. Indeed, that seems to be contemplated by the Court of Appeal in the case of Mulla which I have cited at paragraph 3.2. This was not a case in which the defendant’s hopes were raised later to be dashed. That appears to be being identified by the Court of Appeal as detriment of this kind. This happened to these practitioners not once but twice.
Can I move on to the contention made by Ms Sullivan that the appropriate way to deal with the issue of merits is by way of an application for cancellation. The first point to make is that there has been no attempt by Ms Sullivan to respond at all to my contentions about merits and their relevance. She has simply said you should not consider them. She has not addressed the two reasons why I say that you should. She has not said in response to my explicit setting out of her own case from her own experts on the heads of charge against Dr Samuels that I have misrepresented things, that there is further evidence which could be and will be adduced by her which support these heads of charge. The only conclusion which you can draw from that is that there can be no answer.
Should there then have been, as she suggests, an application for cancellation? That is a wholly unrealistic suggestion. We did not get the Notice of Inquiry in this case until 8 April of this year. As you have had demonstrated to you, the evidence from the General Medical Council has come in in huge quantities, mutating as it does so, between 8 April and now.
I sought further and better particulars of allegation 3(a). I am not sure if I have got them. What I heard from Ms Sullivan was well Dr Raine at Queen Charlotte’s was the only person who took consent. If she is saying that we should conclude from that that only one person should have been able to take consent in relation to the 244 children enrolled in the trial at Stoke over the four years then those are further and better particular indeed, but laughably unarguable as an allegation. I do not imagine she is saying that. If she is saying that then of course I am very pleased. I would like her to nail her colours to the mast. If that is not the answer then we still do not have one and I do not know what allegation I face in relation to charge 3(a).
THE LEGAL ASSESSOR: I was slightly puzzled when you formulated it because I almost ended up with the impression that any number would have been appropriate provided they were properly trained, in which case the allegation as to numbers is probably not material and it is the training that is important.
MS SULLIVAN: It is in part important but not in its entirety because the fact that there were 34 people of varying different levels of experience consenting for the trial the Council would say is too many. I am not saying it should just have been one – of course that is totally unrealistic – but it should not have been as many as that and of as many different standards of experience.
MR FOSTER: I am none the wiser nor better informed. Mr Forde invites me to observe, as is the case, that there is not a single statement from any of the doctors who the General Medical Council proposes to call saying that they were inadequately trained, that they did not know what they were doing, another point which goes to merits.
There is then the issue of whether the charges were, to use legal shorthand, validly committed. The Chairman put to me a question yesterday afternoon about what had happened after the Court of Appeal considered the matter. What happened was that the Court of Appeal said that the Preliminary Proceedings Committee should reconsider the matter. It was not that the Court of Appeal said that the whole process should start again, there should be re-screening and the process should go on from there. The matter was ordered to go back to the Preliminary Proceedings Committee. The documentation which resulted thereafter you have seen in the second small bundle which was handed up to you yesterday. The Henshalls were invited to, and did, produce some further comments and in response to those comments those instructing me on behalf of Dr Samuels responded further.
Rule 11(2) which is relied upon by Ms Sullivan has to be read together of course with Rule 4A and Rule 4D. The fact of the matter here is that Dr Samuels has been wholly deprived of the basic protection of Rule 4A and 4D because we have in what he now faces allegations which are, because of the GMC’s procedural default, wholly uncommented on. Rule 11(2) does not begin to help my learned friend. It says that:
“Provided that where the Committee refer any cases relating to conduct to the Professional Conduct Committee, and the solicitor or the complainant later adduces grounds for further allegations of serious professional misconduct of a similar kind …”
You can hear me italicising those final four words,
“… such further allegation may be included in the charge or charges in the case.”
The allegations which we now have are not of a similar kind to those which Dr Samuels commented on.
I have commented already that Ms Sullivan closes with an invitation to you to allow this case to go on because it is in the public interest to do so. I ask rhetorically, as Mr Forde has already done, what conceivable public interest can there be in a further airing of these issues? It is not as if these allegations have been brushed under the carpet in some sinister way which should give the Henshalls real grounds for concern. I have demonstrated by reference to the evidence which the GMC proposes to rely on that there is no prospect of making out any of these allegations, let alone a finding of serious professional misconduct against Dr Samuels. It cannot be in the public interest to pursue charges which are doomed. Indeed, as I have said too in my skeleton argument, it brings the whole process of proceedings before the General Medical Council Professional Conduct Committee into disrepute if they are used in this way. It is not in the public interest that they should be so abused. It is not in the public interest to keep doctors who should be on the wards looking after patients sitting here facing baseless allegations. Those are my submissions.
MR FORDE: May I mention one matter and, if necessary, Ms Sullivan may wish to comment on it. I adopted Mr Foster’s submissions in relation to legitimate expectation and I am aware of the fact that I have not pointed to reliance to my client’s detriment. I do rely in your bundle D1-C upon his letter of 23 April 2004 where he indicates, and this goes to prejudice initially:
“I was severely hampered in obtaining two senior posts …”
But after the case was dismissed the first time he relies upon that dismissal and enters into a positive discussion with a medical director of a trust in relation to a newly created post. As soon as the case is re-opened he is told you cannot apply. He goes on to explain that his personal life and work has been affected in many other ways as you might imagine. If you are looking for prejudice and detriment, in my submission, it was professionally embarrassing for him to enter into discussions in reliance upon the first dismissal as communicated to him by the GMC with a senior colleague in relation to that newly created post and then of course he is told in terms you are not eligible because this matter is still outstanding.
MS SULLIVAN: Could I just correct one matter? My understanding is that delay was something that featured in the Court of Appeal, but neither Mr Foster nor myself were there.
MR FOSTER: If it was, it was not referred to by either of the judges who gave the main judgments.
MISS O’ROURKE: Sir, I am in a difficult position because I represent here today different clients to those I represented in the Court of Appeal. I continue to owe Dr Samuels and Dr Spencer duties of confidentiality in respect of my representation of them in those proceedings and so I do not think it would be appropriate for me to say anything. All that I can say is that there obviously were pleadings in documents and affidavits and things filed which are of course matters of public record, but I do not think I can say anything beyond that. I do not think my professional duties would allow me.
THE CHAIRMAN: I think we have now reached the point where I can call on Mr Forrest as the Panel’s Legal Assessor to give us the appropriate legal advice before we retire to consider these applications. Having had a quick whispered conversation with Mr Forrest, the suggestion he was making was to allow him time to put his thoughts together in articulating the advice he would wish to give us, it would be sensible if we were to break for lunch now and return at half past one, and then at half past one we will receive our legal advice from Mr Forrest. Once we have the advice the Panel is going to go into camera to consider the applications but we will deal with the question of how long we think that might be and how long it will be sensible to release people until at that point.
(Luncheon adjournment)
THE CHAIRMAN: Welcome back everybody.
MR FOSTER: Before your Legal Assessor directs you, we have been investigating the matter of what was and what was not told to the Court of Appeal in relation to delay. It seems that there was some mention of the issue before the Court of Appeal. I am not sure of the details. What I can say about it is, as I have observed already, the two judges who gave the prevailing judgment in that case do not seem to have relied on delay at all in coming to the conclusion they did about what happened to the case. The only detailed comment on it is the one from Lord Justice Auld, which I have read out.
THE CHAIRMAN: I suppose that the best one can say about that, Mr Foster, is that from what you say, if there was some mention of delay, the two judges who gave the majority judgment allowing the appeal did not find it necessary to make any observation about delay, it not being directly an issue in the case.
MR FOSTER: They have not commented on it. What one concludes from that, I do not know.
THE CHAIRMAN: Lord Justice Auld was saying at paragraph 76, “Well, I have reached the conclusion I have, but even if I reached a different conclusion I might then have exercised my discretion”.
MR FOSTER: Absolutely.
THE CHAIRMAN: Thank you. That is helpful.
MS SULLIVAN: I am sorry to stand up in relation to this. Of course that relates to the first judgment. The question of whether to exercise discretion was argued on the second occasion on 31 January 2006. The only other point I would make is that Lord Justice Auld’s analysis of what had happened in the case was adopted by the other two judges who were in the majority.
THE CHAIRMAN: The best we can do is to look at the judgment that we have in relation to the supplemental hearing. Miss O’Rourke has quite rightly I think indicated that she would fell diffident if not embarrassed in going further than what is apparent from the judgment. We will just have to make the best we can from the judgment as it appears.
MS SULLIVAN: Yes, we have set in train to try to get those documents that Miss O’Rourke said would be a matter of public record. As of yet we do not have them.
THE CHAIRMAN: If they were to arrive during the time the Panel is deliberating on the application in private, and if it was thought we might be assisted if we had access to them, would there be any problem in their being made available to us?
MS SULLIVAN: We would agree to that.
MR FOSTER: Certainly not from my part.
MR FORDE: I would be more than happy for you to receive them.
THE CHAIRMAN: Then, if having arrived and if having seen them you think they might be of assistance, by all means steer them in our direction. Mr Forrest.
THE LEGAL ASSESSOR: Sir, I remind the Panel, as I did yesterday, that what follows is my advice, not a direction, and the Panel is free to disagree with any advice which I give. I remind the Panel too that I have no view. I am not allowed to have a view, and in fact I have no view concerning the merits of the application. If I mention some facts to give illustrations, it is purely illustrative and not because my mind is turning in any particular way.
It always happens, and I apologise in advance, but because the cases are criminal cases I shall by oversight inevitably refer sometimes to the prosecution and the defendants. If I do so it is an oversight. The prosecution equates to the GMC in this case and the defendants are the doctors.
The application is for a stay of proceedings on the ground of abuse of process. The first thing to tell the Panel is what constitutes an abuse of process. No court should allow itself to be used as an instrument of injustice, so a power has been devised to stay proceedings, which includes a power to safeguard an accused person from oppression or prejudice. A court may stay proceedings, for example, where to allow them to continue would bring the administration of justice into disrepute among right‑thinking people. That would be the case if the court were allowing its process to be used as an instrument of oppression, injustice or unfairness.
What is at stake? It means that the case comes to a stop. There is no adjudication on the merits of the case whatever; the case simply does not proceed. The burden of proof lies on those making the application. That is the doctors, and it is for them to prove on the balance of probabilities that a stay is justified - although once the facts have been proved there is a large degree of judgment to be exercised in assessing whether a fair trial is still possible.
It is an unusual feature of this case that of the three doctors only two are making an application. The Panel should draw no inferences whatever from Dr Southall’s having declined to enter into this particular fray. As I understood the doctor’s position through Miss O’Rourke it is a case of, what seems to be the popular phrase now, “bring it on and let us have a fight regardless”, so that the doctor may be vindicated on the merits rather than being left in the unsatisfactory position, as he may regard it, of the case simply having come to a stop. But you should not draw any inferences from that as to merits of the present application.
Although there is a large degree of overlap between the arguments, you must look at each doctor’s application separately because there may be factors that apply to one doctor but not to the another. It is also accepted on all sides that you should look at each factual allegation separately. Counsel for the doctors say that the whole case should be stayed, but each has made arguments in relation to particular factual allegations, and it is open to you to stay further proceedings in relation to particular allegations while allowing the reminder of the allegations to proceed. That is, in a sense, the doctors` fallback position: if things are not so bad that the whole case should be stayed, then nonetheless you should stay some particular allegations. For example, the reason you must look at the allegations separately is you may think there is a difference between setting up a protocol for a trial, which would be a process spread over many months, and what was said to a patient’s parent on a particular day many years ago in the course of a doctor’s ordinary duties. That is only an example of the sort of distinction you could draw if so minded.
As all parties agreed yesterday, but I remind you again, this is not the time to make findings on the substantive issues that arise in the case. You must carefully avoid doing that.
You have had drawn to your attention various extracts from disclosed witness statements and expert reports, which the doctors say make it impossible for the GMC to prove various of the factual allegations. My advice to you is that these are selective excerpts. You do not know yet the whole of the evidence. If it is indeed a thin case and the evidence will not bear the weight Ms Sullivan puts on it, then it will be appropriate for the application to be reconsidered, possibly once Ms Sullivan has concluded her opening, certainly at the close of the GMC case; and it would be possible at any stage to renew the present applications once it is seen what the evidence actually is, or to make a submission that there is in effect no case to answer.
Mr Foster raised arguments about the admissibility of evidence and in particular the evidence of Dr Nicholson, I should say. Matters of admissibility can be dealt with in the course of a substantive hearing, either by an application to exclude the evidence or by cross‑examination. As I may have to explain again, an expert is only allowed to give evidence if he is indeed expert in a relevant field of expertise. An application can be made that the evidence should not be allowed at all, or the expert can be subject to cross‑examination. My advice to you is that questions of admissibility should not feature in your deliberations at this stage.
The principal plank of the doctor’s argument arises out of delay. Other points arise which are not connected with delay. For convenience I deal with those together. There is an argument based on insufficiency of particularity of various allegations. We have investigated those this morning. How many is too many in the case of doctors and nurses being delegated to take consents, and what is the period over which regular blood pressures should have been taken? My advice again is that at this stage, at least, those matters should be left out of the count by you. Again, this is an application that can be renewed and may helpfully be done so once Ms Sullivan has opened the case and made clear precisely how she puts each of those allegations against the doctor. It is certainly true that the doctors are entitled to know the case against them before the evidence starts. If there remains after the opening sufficient doubt as to what is being alleged then I suggest that you invite, and they will probably require no invitation, Mr Forde and Mr Foster to renew their application.
It would be unfair to describe it as bickering. There has been a degree of polite disagreements concerning continuing disclosure. It is of course the duty of the GMC in a case such as this to give continuing disclosure of relevant documents as they come to light. That is not in itself a ground for staying the proceedings. If of course an important points arises out of continuing and late disclosure then it is a matter for the doctors to consider their position. Again, if something comes up which changes the complexion of the case the present application could be renewed. Again, I invite you to leave out of consideration at the moment the late disclosure as is alleged as a grounds for a stay, although it forms part of the general background to the subsequent considerations you will have concerning delay.
Mr Foster raised a procedural point. This is dealt with at section five of Mr Foster’s argument. It concerns Dr Samuels only. You will recall this is the point about the failure to obtain the comments of the doctor. You heard Ms Sullivan’s response to that under Rule 11(2). It is my advice to you that in any event the rule requiring that the doctor’s comments be sought is directory. In other words it should be done, but it is not fatal to the proceedings if it is not done. That is a technical legal distinction between directory and mandatory rules.
I move on to an argument which was most fully deployed in Mr Foster’s skeleton argument, but of course adopted by Mr Forde and therefore applies to both doctors. It is the argument concerning legitimate expectations. Mr Foster has helpfully set out at page five, paragraph 3.3 of his skeleton argument, an extract from the Court of Appeal in R v Abu Hamza which is the most recent authority on this subject. The cases which he set out previously, with the exception of the first case to which he refers, deal with cases where expectations were raised by dashed, but the court held that that was not sufficient ground for a stay.
The overall conclusion of the Court of Appeal was that a stay may be appropriate in some circumstances such as these. This is at the bottom of page five of Mr Foster’s skeleton argument. For example,
“if police, who are carrying out a criminal investigation, give an unequivocal assurance that a suspect will not be prosecuted and the suspect, in reliance upon that undertaking, acts to his detriment. Thus in R v Croydon Justices... a 17‑year‑old youth, who had assisted in destroying evidence after a murder had taken place, was invited by the police to provide evidence for the prosecution and assured that, if he did so, he would not himself be prosecuted. He thereupon provided evidence against those who had committed the murder and admitted the part that he had played. In these circumstances, which Staughton LJ presiding in the Divisional Court described as ‘quite exceptional’, it was held to be an abuse of process subsequently to prosecute him”.
You will realise that it was the defendant himself who had irrevocably changed his position by making confessions which he had been promised would not used against him, but which subsequently the prosecution did seek to use against him. You may think that in those circumstances it is not hard to see why the court thought that that was abusive and oppressive.
The conclusion is at the bottom of bottom of page 6, 54. After reviewing the authorities, including Bloomfield, in which there was no change of circumstances, the conclusion in Abu Hamza was:
“These authorities suggest that it is not likely to constitute an abuse of process to proceed with a prosecution unless (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant would will not be prosecuted and (ii) that a defendant has acted on that representation to his detriment.”
Applying for a job, for example, is not in itself acting to one’s detriment, it is trying to act to one’s advantage. The fact that a different party then refuses to give the job, is not a case where the defendant has acted to his detriment.
I draw attention to the last part of the Abu Hamza judgment:
“Even then, if facts come to light which were not known when the representation was made, these may justify proceeding with the prosecution despite the representation.”
In this case, at least so far as the first assurance is concerned that there would be no further action, that does seem to have proceeded on the basis of a mistake, which subsequently came to light, namely that 1600 pages of documents had been overlooked. Mr Foster did argue that the doctors had acted to their detriment in not obtaining documents and so on, not chasing up witnesses. That is a matter for you and you bear in mind the comparatively short periods between the notification on 15 March 2002 that the case was not proceeding and the intimation on 2 May of the same year that it was proceeding because a mistake had been made, and then on the second decision, communicated on 12 March 2004, which was reversed because of the judicial review.
It is right to say that any decision of a public body is, in a sense, provisional in that the public body is always subject to judicial review, and it may be that hopes cannot be raised too far until the period for judicial review, when usually the application has to be made within three months from the date of communication of the decision, whether that sort of raising of hopes is a matter of significance.
Mr Foster also raised the argument in his skeleton at paragraph 6.1(b), that there was an improper motive in this case. Perhaps, but it is us matter for you, he did not make it absolutely plain whose improper motive it was. I remind you that it is for the defendants to prove this on the balance of probabilities, in so far as there has been talk of the Henshalls having an agenda of their own or anything of that sort. I draw your attention to this paragraph of Archbold, the leading text book on Criminal Law. It is paragraph 4‑63a for those interested:
“A complainant’s unreliability as a witness and his obsession about his cause do not justify a decision to stay proceedings on the basis of abuse of process.”
That seems to me, but again it is a matter for you, to be about as high as the case has been put to you, and it is a matter for you whether any improper motive amounting to oppression, manipulation of the system, or something such as that, has been proved on the balance of probabilities.
I then turn to what may be described as the main thrust of the doctors’ argument, the issue of delay. There has been talk of public interest. It is right that I should remind you of the context in which you have to consider these allegations. This is not simply a civil dispute between two parties as to whether, for example, one owes money to the other. There is indeed a degree of public interest. You will remember, no doubt, from the Indicative Sanctions guide that, as far as the GMC is concerned, that the public interest includes, amongst other things, protection of patients, maintenance of public confidence in the profession and declaring and upholding proper standards of conduct and behaviour.
Fairness requires fairness to the GMC in its endeavour to uphold public interest as well as fairness to the doctors. The common law has devised protection for defendants, in this case doctors, in cases where it is no longer possible to have a fair trial of the action.
It is summarised this way, again in Archbold:
“On an application for a stay on the ground of delay, a court should bear in mind the following principles: (i) even where delay is unjustifiable, a permanent stay should be the exception rather than the rule; (ii) where there is no fault on the part of the complainant or the prosecution, it will be very rare for a stay to be granted; (iii) no stay should be granted in the absence of serious prejudice to the defence so that no fair trial can be held; and (iv) on the issue of possible serious prejudice, there is power to regulate the admissibility of evidence and the trial process itself should ensure that all relevant factual issues arising from the delay will be placed before the jury. If, having considered all those factors, a judge’s assessment is that a fair trial will be possible, a stay should not be granted.”
So the focus, as you will see, under the common law is whether a fair trial of the action remains possible. The only remedy is that if a fair trial is no longer possible, there should be a stay.
Separately, since the introduction of the Human Rights Act, it may be alleged, as it is indeed alleged in this case, that there is a breach of article 6 of the European Convention on Human Rights – the right to a fair trial within a reasonable time. So far as the fair trial aspect is concerned, requirement for a stay of the proceedings due to delay are similar whether the court has been asked to consider common law principles or article 6. This needs a little further explanation.
Article 6 requires various disjointed rights. In other words, it may still be possible to have a fair trial even after a period of delay, but that delay may constitute a breach of the requirement to have that trial within a reasonable time. The starting date for the article 6 inquiry is 30 March 2001. If a breach is found, then a remedy is required, but that remedy need not be a stay, and indeed should not be a stay unless it is possible to have a fair trial of the action.
It is put this way in the leading authority to which your attention has already been drawn, the Attorney‑General’s Reference (No 2 of 2001) [2004] 2 AC 72. It is at paragraph 24 in Lord Bingham’s speech:
“If the through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant’s Convention right under article 6(1). For such a breach there must be afforded such remedy as may be just and appropriate in terms of the Human Rights Act or (in Convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances. The prosecutor and the court do not act incompatibly with the defendant’s Convention right in continuing to prosecute or entertain proceedings after a breach is established in a case where neither of conditions (a) or (b) is met, since the breach consists in the delay which has accrued and not in the prospective hearing. If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless (a) the hearing was unfair or (b) it was unfair to try the defendant at all, it will not be appropriate to quash any conviction. Again in any case where neither of conditions (a) or (b) applies, he prosecutor and the court do not act incompatibly with the defendant’s Convention right in prosecuting or entertaining the proceedings but only in failing to procure a hearing within a reasonable time.”
So it is open to you to find that, if the GMC has been guilty of delay since 13 March 2001, which has had the effect that the hearing has not taken place within a reasonable time, then there is a breach of article 6 and there should be declared to be a breach. It is open to you to say that it is sufficient vindication of the defendant’s rights that that declaration has been made by you, and a stay could be the answer unless a fair trial is no longer possible.
Mr Forde put forward the argument that in regulatory proceedings different principles apply concerning the sanctions which, of course, are not intended to be punitive, from the principles which apply in sentencing a convicted offender. You must make of those arguments what you think fit in the light of the response which was given to you by Ms Sullivan on behalf of the GMC.
The periods which you should regard as culpable by a public authority are those which could properly be laid at the door of the GMC. Ms Sullivan was suitably demure and circumspect in the concessions which she made. Certainly the Panel may think that the fact that the GMC overlooked 1600 pages of documents, that set the clock running for culpable delay, though of course what timescale would have been observed if those 1600 pages had not been overlooked has not been investigated. It is debatable whether, once the Preliminary Proceedings Panel in 2004 made a decision which was wrong and corrected subsequently by the court, it is debatable whether that should be laid at the door of a public authority in this context, or whether it is a judicial decision, but at best, as Mr Forde has said, that should be regarded as neutral. No‑one believes that it could be laid at the door of the GMC that from the time of the High Court decision in the judicial review to the time when the Court of Appeal finally gave its decision, but that delay can be laid at the door of the GMC so the clock in effect stops running during that period.
Your attention was drawn to the case of Rogers. Ms Sullivan’s submissions concerning that case gave no particular force because she was able to refer to a text book. She was entitled to, and did, adopt the argument of the authors, but it is for you to judge the merits of that. My advice to you is that not every case, as has been emphasised to you, turns on its own facts. It is not clear what the facts in Rogers were. Most importantly it was decided before what is now, and I am struggling to find the words for, locus classicus, but the authoritative source of learning on this topic is now the case in the House of Lords which I mentioned, The Attorney‑Generals Reference (No 2 of 2001) which was decided after Rogers. At the time of Rogers the Human Rights Act had only recently been introduced and there was controversy and some disagreement between England and Scotland as to the effect of it.
Rogers could never be an authority. It is something you can take into account and my advice is that you should give it little weight.
The five year rule - all except that this did not apply at the time of the events which are the subject of the present hearing, my advice to the Panel is that you may take it into account insofar as you think it casts light on the issues concerning delay. Clearly delay is never desirable and that has now been enshrined by what perhaps is a somewhat arbitrary cut-off point in the GMC. You may find that helpful in your considerations as to whether a fair trial is possible or not, but of course the five year rule only applied and was judged by the time between the happening of the events and the making of the complaint to the GMC and you are concerned with delay other than during that period.
I have already read to you the passage which says a lot of the concerns which are raised in this type of application can be addressed by the trial process; points about fading memory and so on. Ms Sullivan rightly reminds you that the burden of proof in this case will be on the GMC and the standard of proof is that the GMC will have to satisfy you, if the case proceeds, that you are sure of the factual allegations.
In trying to satisfy you to that degree of certainty, evidence will be called, the witnesses will be subject to cross-examination, the accuracy or otherwise of their recollection will be fully explored and no doubt submissions will be made and will be investigated in cross-examination whether documents might have helped. The only documents which we know at this stage are missing are ultrasound scans and Ms Sullivan reminds you that the reports of those scans are still available.
It might help you to know the sort of advice which I would be giving you at the end of this case if you were to reach the stage of considering the facts because that may help you appreciate the protections which are built into the trial process. The suggested directions which the Judicial Studies Board provides for judges dealing with old cases are along these lines:
You are concerned with events which are said to have taken place a long time ago. You must appreciate that, because of this, there may be a danger of real prejudice to the practitioner. This possibility must be in your mind when you decide whether the Council has made you sure of the practitioner’s guilt. You are entitled to consider why these matters did not come to light sooner. Is that a reflection on the reliability of the complaint?
You have been given an explanation for this and that will be whatever explanation the Henshalls give concerning the first period of delay and the cross-examination thereof and the submissions which are made and any evidence which is led in relation to subsequent periods. The direction goes on like this:
You should make allowance for the fact that with the passage of time memories fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred many years ago. Sometimes the passage of time may even play tricks on memories.
You should also make allowances for the fact that, from the practitioner’s point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. For example, has the passage of time deprived him of the opportunity to put forward and alibi and evidence in support of it? You only have to imagine what it would be like to have to answer questions about events which are said to have taken place, in this case up to 18½ years ago, to appreciate the problems which may be caused by delay. Even if you believe that the delay in this case is understandable, if you decide that because of this the practitioner has been placed at a real disadvantage in putting forward his case, take that into account in his favour when deciding if the prosecution has made you sure of his guilt.
In other words, the implication of that advice is this that, once you have heard all the cross-examination, it may not be necessary to cross-examine because witnesses may not come up to proof, say what they were expected to say, even in-chief, but the trial process will take care of those doubts and, if appropriate, result in an acquittal. Unless the doctors’ counsel have persuaded you on the balance of probabilities that those safeguards cannot ensure a safe trial, then the proper course for you is to allow this to go forward to a hearing.
There is talk in some of the extracts from cases about a discretion whether to stay a case as an abuse of process. My advice to you is this, that there is really no discretion in this sense if you find on the balance of probabilities that it is impossible to have a fair trial of any particular issue or of all the issues, you should say so and you should stay that part of the proceedings. It would not be a proper judicial decision to say well, a fair trial is impossible but in the exercise of my discretion I think I will let it go ahead anyway. That would not be the right process.
Sir, as a legal assessor, my main function is to prevent you from falling into error. In view of the amount of material which has been put before you there may well be matters which arise in the course of your considerations which will require further advice. If that happens, I shall of course give advice and it would be necessary to reconvene and repeat that advice in public so as to hear the submissions of the parties. I believe, after my discussions with counsel for all the parties, except Miss O’Rourke, who is not participating in the application in any event, that I have covered all the matters which I wished to do so. That is my advice unless any Member of the Panel requires further clarification at this stage.
DR OKITIKPI: This is not a clarification as such, but if we want a copy of what you have just read out would it be possible?
THE LEGAL ASSESSOR: Yes, it is incorporated into the transcript which should be available by the end of the afternoon, which I think is likely to be the earliest you will come to consider the application of this advice to the facts. I ought to have said that clearly you need to read all the skeletons again and the documentation which has been put before you before you start detailed consideration of the applications.
MR FORDE: There is one matter I may need to check but I would like to comment on two aspects of the advice that has been given to make our position absolutely clear. It is our case that, under the common law, time runs against the Henshalls, who are jointly instructing my learned friend, from their concerns being expressed in relation to the CNEP trial. We were told 20 March 1996. I am looking at my learned friend’s chronology, C2, and we know that by 21 July 1994 this family were instructing solicitors and the Newall Report that I have seen of November 1995 deals with concerns of the sort in relation to scans which comprise the charges that my client faces in paragraphs 18, 19 and 20 and therefore it is my strong submission that the time period in relation to those allegations which were not specifically dealt with by the Court of Appeal have been matters of concern to the Henshalls since the middle Nineties, throughout the period of time, right up until April 2008. We suspect their knowledge may have been prior to 21 July 1994.
So far as Article 6 is concerned, the learned Legal Assessor suggested that time might run from March 2001 and then be held in a sort of neutral abeyance as a result of the judicial review proceedings. Can I make it absolutely clear that our position is that the Court of Appeal, in the short judgment that you have been handed which I think was in January 2006, said the matter should proceed “with expedition”. I do rely upon the period between January 2006 and April 2008. I would only be prepared to concede that their Lordships did not assist matters in taking six months to deliver their judgment as far as Article 6 is concerned.
There is just one section of Archbold that it occurs to me, but this is subject to the view of the learned Legal Assessor, might assist you when you are looking at these overlapping periods and culpability. It is a little passage just above paragraph 4-68 on page 387 of the 2008 edition of Archbold. I will read it into the transcript:
“Where substantial delay has occurred which can be attributed in part to, for example, inefficiency on the part of the prosecution [for that read GMC] and in part to the conduct of the defendant [we say there is no culpable delay on the part of the doctors here] the court must consider to what extent the delay is attributable to prosecution inefficiency. If the delay, so attributable, is substantial, and if the court considers that the defendant [for which read doctor] has, or must have been, prejudiced thereby, so that the continuance of the prosecution can be regarded as an abuse of process, the jurisdiction may be exercised in the defendant’s favour.”
The point I wish to make is even when there is joint culpability your duty is clear in the sense that you can exercise your discretion in favour of the doctors. The General Medical Council can point to no culpability. The delays in court might be regarded properly as neutral, but in any event the substantial delay that had occurred up to the judicial review proceedings in 2004 should be taken into account by you in then looking at the delays since 2004. I just wanted to make that clear.
For the record, on the five year rule, and you have been reminded of this, I am not saying that it was applicable at the relevant time simply because it might be an approach that you could consider adopting. I hope that makes matters a little clearer.
MR FOSTER: I adopt those submissions.
THE CHAIRMAN: Ms Sullivan, have you anything you wish to say about the advice we have been given?
MS SULLIVAN: No, sir, except to say that I agree with the advice that you have been given and it would seem on the basis of what was just quoted by Mr Forde at 4-67(a) that you would need to consider to what extent the delay is attributable to GMC inefficiency, so it is still necessary to consider that prior to coming to any determination.
MR FORDE: I would say the GMC and Henshall.
THE LEGAL ASSESSOR: It was just something that arose out of what Mr Forde was just saying but I think it would only complicate matters if I were to embark on it.
MR FORDE: If it is thought necessary, I am more than happy to discuss it with the Legal Assessor.
THE CHAIRMAN: Thank you, Mr Forrest, for those observations. That brings us to the point where the Panel can now retire to deliberate on the applications which have been made and to reach a determination. In terms of what we propose to do, as Mr Forrest has just indicated, we will start that process by reading all the material which has been put in as part of your respective submissions and Ms Sullivan’s response and of course we will remind ourselves of the amplification which has been given to the skeleton arguments through oral submissions. Once we have done that we will then go on to deliberate and reach a determination.
I cannot at this stage say exactly how long that process is going to take. If it helps the parties, and I hope it will, I think I can say with some certainty that we will not have reached a position where we can call you all back to give a determination ---
DR OKITIKPI: Mr Forde read out the extract and Ms Sullivan agreed with the extract. I am not quite sure what we are to make of the extract?
MR FORDE: It is 4-67(a), page 387, the penultimate paragraph. I am happy for you to deal with it.
THE LEGAL ASSESSOR: I do not think it adds significantly to the advice which I gave. I am very happy to endorse it as a statement of the law. There is no reason why this paragraph should not be shown to the Panel if they wish to look at it, or indeed any of the paragraphs.
MR FORDE: Yes, if they want to see it. We can photocopy the section from section 4-66 onwards, but it is on the transcript.
THE CHAIRMAN: That is fine. We have Archbold here to which reference has been made and if we wish to look at it we will be able to do so. I should probably have caught your eye before I embarked on the next stage. I think I can say with certainty that we can release the parties until 2 o’clock on Monday simply because, doing the best that I can at this stage, I think that is a reasonable assessment of a time within which I can say we will not be in a position to have reached a final decision and produced the determination and be in a position to give it.
If, come Friday afternoon, it is apparent to us all that it is not going to be finished even by Monday lunchtime, then we will endeavour to contact all of you and let you know, so if you can make sure the Panel Secretary has contact mobile phone numbers. I think you were indicating, Ms Khan, that we could give an update on Friday in any event and we will endeavour to do that.
The Panel will now go into camera for the purpose of deliberating and reaching a determination on the applications which have been made. Parties, counsel and everybody else involved in the case is released from attendance here until at least 2 o’clock on Monday afternoon, but if it looks as if it might be later than that we will endeavour to get in touch with you and let you know, subject to the need to reconvene if any new legal issue arises.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE PANEL DELIBERATED IN CAMERA
(All parties provisionally released until 2 pm on Monday 19 May 2008)
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