CO/5836/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Thursday, 3rd July 2008
B e f o r e:
MR JUSTICE MITTING
Between:
THE QUEEN ON THE APPLICATION OF
Claimant
v
GENERAL MEDICAL COUNCIL
Defendant
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The Claimant appeared as a litigant in person
Mr M Shaw QC (instructed by the GMC) appeared on behalf of the Defendant
PROCEEDINGS
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1. MR JUSTICE MITTING: Dr Al Ruby.
2. DR AL RUBY: Good morning, my Lord. I would like to focus your Lordship's attention on one issue in this application and no more. I am requesting the General Medical Council to conduct an investigation into any doctor who has been issued with an alert letter. There are two limbs to these proceedings. The first limb is that the doctor reaches the threshold upon which the authority issues such a letter. The second thing is that this should be followed by an investigation. The reason that it has to be followed by an investigation is that the investigation will justify the first limb of the action. If the second limb is not satisfied, there is no justification whatsoever for the first limb.
3. I am standing in front of your Lordship today in spite that I have managed to defeat the first limb of that action after 10 years. I have been asking them or I have been in the court. This has caused me, unfortunately, bankruptcy. The defendant has been trying to deviate your focussing in these proceedings. I am trying to really litigate the several court decisions which have been in the last 10 years I have been through them in the last 10 years. This is not true at all, your Lordship.
4. The reason for this application is to explore or show your Lordship that there is a necessity in the public interest, as much as the whole of the medical profession, that an investigation is conducted. May I ask your Lordship to refer to the supplementary bundle and page 474. This is a recent letter from the constabulary, document 132.
5. MR JUSTICE MITTING: Yes.
6. DR AL RUBY: I would like to draw your Lordship's attention to the last paragraph in which Detective Inspector Jeff Hunt and Detective Inspector Paul Chapman had agreed together that this matter should go to the Crown Prosecution Service for further examination and decision. I am amazed, your Lordship, how two detective inspectors in the constabulary, if we say that they are in the same level as the screener of the General Medical Council, have decided to raise the matter to what is equivalent in the GMC to the Professional Conduct Committee and the GMC, every time I apply for an investigation, they strike it out from the very first stage of the procedure.
7. I am very well aware, your Lordship, of your extensive knowledge of how the General Medical Council functions in that process, but I am afraid I am sorry to have to supply you at the very last minute with a very small documentation about the process and Lightman J's decision and what probably should be assumed as the law in that respect.
8. I would like to first defend my position of bankruptcy. In spite that I have indeed declared bankruptcy recently, I have the jurisdiction, I have the right, to stand before your Lordship today.
9. MR JUSTICE MITTING: Do not trouble with that for the moment. I am content to assume that. What troubles me is the underlying merit, or lack of it, in your claim.
10. DR AL RUBY: Well, the merit, your Lordship, is that I will not be able to proceed in the High Court in order to reverse the judgment and the court order unless I have a substantive decision from the authority that the sexual allegations which has been thrown at me and all the allegations of incompetence are of no substance. They have been malicious and in order to undermine my credibility and integrity in the medical profession, so this is the reason why I am pushing for an investigation. I feel, your Lordship, that this is my right under the Department of Health Regulations and the regulations concerning the alert letter issued against medical and dental professionals that any doctor in my position should not be satisfied by an act to destroy his career without forming an investigation. I would assimilate this condition to a judge sentencing a person to jail without a trial.
11. MR JUSTICE MITTING: You want the General Medical Council to investigate the conduct of other doctors.
12. DR AL RUBY: That is correct. Not only the conduct, your Lordship, but the reasons for them issuing an alert letter.
13. MR JUSTICE MITTING: Yes. All this goes back to 1998 when the two letters were issued.
14. DR AL RUBY: Yes.
15. MR JUSTICE MITTING: It is completely hopeless to expect the General Medical Council to investigate Dr Hibble and Dr Troop.
16. DR AL RUBY: I feel, your Lordship, that in the public interest this has certain importance. In addition, if there is no investigation which would ever be done ‑‑
17. MR JUSTICE MITTING: I can understand that it is deeply frustrating for you that you are not now able effectively to challenge what they wrote in their letters. But the two letters were written pursuant to what the law recognises as a duty. They are covered by qualified privilege in defamation law. You have litigated issues about them before the Employment Tribunal and in the County Court. You cannot expect the General Medical Council to pursue your litigation for you by bringing pointless proceedings against the two doctors before the Council.
18. DR AL RUBY: Your Lordship, would you be satisfied, as I understand it, that the doctor would be issued with an alert letter with certain allegations and this would not be followed by any form of investigation? Because the defendant, your Lordship, is trying to say that the Assessment Referral Committee was an investigative panel. I can prove to your Lordship in a very simple manner that if the Assessment Referral Committee in which the decision was there was no relevant evidence to substantiate that my standard of practice was in any way deficient or might be seriously deficient, as the words say, this compels the authority to cancel the alert letter, but the judges of the court, when they had read this decision, they did not feel that this is a decision which is radical enough to exonerate me. Therefore, I am after your Lordship to look at the other side of the coin and see that, because the Assessment Referral Committee was not an investigative panel and because the law says that if a doctor is issued with an alert letter, this should be followed by investigation and then particularly mention who should do that investigation, the level of the investigation (which is page 2, paragraph 2 and 3 in the Department of Health Regulations) and it is cited there clearly that the General Medical Council is one of the authorities after the police to conduct such an investigation.
19. In my case, your Lordship, I have not had an investigation. This is a serious breach of the regulations. It is my right under rule 12, as I have been harmed in a very serious way not only professionally but financially, that I should ask for an investigation.
20. MR JUSTICE MITTING: That rule is directed to the doctors who are the subject of the investigation, not you.
21. DR AL RUBY: No, my Lord. If you would allow me to argue this point. Your Lordship, it is page 13 in the supplement bundle at the bottom of the page, GMC rule 12. May I draw your particular your Lordship's attention to 2(b) and (c) in that rule which says:
"(2) Subject to paragraph (3), the President shall not review a decision specified in paragraph (1) unless he considers that there is new evidence or information which makes such review . . .
(b) necessary for the prevention of injustice to the practitioner; or
(c) otherwise necessary in the public interest."
I believe, your Lordship, that I can satisfy these two issues today.
22. In view that there has been new evidence and new information, I am going to read to your Lordship from page 15, the facts, in that very same document. There has been new evidence and new information concerning my case in addition to the serious damage and injustice I have suffered which makes the application of rule 12 a necessity under 2(b) and (c). If this is not a typical case for the application of rule 12, what then would be any more deserving circumstances than this one.
23. Then I talk about the law of contract between the doctor and the General Medical Council. If you do not mind, your Lordship, leave this because I am sure you have knowledge of that sort of contract. There is a form of contract. This contract is signed by one party which is our registration certificate by the Registrar.
24. Then I go with your permission to page number 16 at the bottom paragraph. I read to your Lordship:
"According to rule 12, (b) and (c) the facts are I have been subjected to serious injustice which has made me physically suffer and financially suffer. It would certainly be in the public interest and in the interests of the medical profession which constitutes a part of the public that an investigation of the allegations made by the Trust be conducted by the General Medical Council. There would be lessons learned and career damage avoided in addition to serious protection of public money which has been unnecessarily drained in the Trust fighting cases like mine in the court. It must have cost an amount of £500,000 to date to fight my application. It is therefore in the public interest to stop this continuous drain."
The concept of public interest, I talk about that. Then at page 17, the second paragraph:
"In view that the previous request for such an investigation has been refused by the screener, the request now is to be made under the provision rule 12. This should be a legitimate request. Had a lay person been harmed by the treating medical practitioner or by certain medical policies under the same rule, in those circumstances the President must act. After being stripped of my credentials through the alert letter, I should be regarded by the GMC as equal to a lay person who has been harmed by an erroneous decision taken by a number of medical practitioners. The GMC staff have never given a good reason for not conducting any investigation in my case. In the interests of justice and in order to see that the GMC has fulfilled its duty of care, an investigation ought to take place."
25. I then talk about the violation of the Convention by saying:
"Article 6, of the excessive delay in cancelling the alert letter and the absence to date for an investigation. The law as set on the application of the Human Rights Act, the law as set by the Appeal Court President, and in the case of Massey v UK, European Court of Human Rights, 16th November 2004, the unlawfulness of infringing Convention rights, section 6, it is unlawful for a public authority to act in a way which is incompatible with Convention rights. That includes a failure to act. This is the provision of the act which has more practical force. It means that it is unlawful for many public authorities to act in a way which infringes any of the rights protected by the Convention. This means that the remedy for an infringement of a Convention right is not a prosecution in the court but an action in the civil courts. Such an action would result in a decision that the act was unlawful and if appropriate an award of compensation."
I can go on, with your permission, your Lordship.
26. MR JUSTICE MITTING: What you have read to me there is basic human rights law with which I am fully conversant.
27. DR AL RUBY: You do not think, your Lordship, that there has been serious breaches in my case of my rights to have an investigation?
28. MR JUSTICE MITTING: You are challenging the decision of the GMC not to act under rule 12 of the Presidential Rules. The decision letter of 13th April 2007 is what you challenge. At the moment you have not addressed a single argument which suggests that the reasoning in that letter was irrational or unlawful.
29. DR AL RUBY: My Lord, the reason is there are serious breaches which happen to my profession and rule 12 should be to protect the weak against the strong. This is when the President steps in and intervenes in a matter which has seriously damaged either a lay person or a professional. I mean, I should be regarded as a lay person now, not as a professional, and the breaches ‑‑
30. MR JUSTICE MITTING: Look at the letter of 13th April which is in the core bundle behind the defendant's acknowledgment of service at pages 19 and 20. It sets out the reasons why the President refuses to intervene. Your job is to persuade me that you have an arguable case that the reasoning is irrational or unlawful or the decision obviously wrong.
31. DR AL RUBY: Your Lordship, the letter addresses my complaint against certain medical professionals in the hospital and it simply says that they are not going to pursue that investigation.
32. MR JUSTICE MITTING: And it gives the reasons. The second last paragraph on page 19 contains the heart of the reasoning. What is wrong with it?
33. DR AL RUBY: Well, I can sort of raise an issue against that they did not think that there was an administrative error in the GMC handling of the case. Let us stop at that. I think there has been serious administrative error in the handling of this case. This case has not passed the screener. This case should have gone to the Professional Conduct Committee. How come a doctor is accused of sexual allegations and the General Medical Council refuses to conduct such an investigation, because if it does conduct an investigation she will raise up an issue of malice against me. I would like to read to your Lordship what that doctor had written to the judge of the court about me.
34. MR JUSTICE MITTING: I am not interested in what the doctor was writing. I am interested in your arguments for saying that the reasoning in that letter is challengeable.
35. DR AL RUBY: Your Lordship, it is challengeable because two detective inspector constables have raised the matter with the Crown Prosecution Service and the screener did not. This is the first point. The judgment is unfair, it is not just and biased against me, obviously.
36. The other administrative error in the GMC handling of the case is that they knew since 1998 about the issuing of the alert letter. They knew all the details. I went to the General Medical Council personally with the bundle of the case and I asked them to conduct an investigation. I had good reasons for that because I had a letter which has been issued against me without any reasonable grounds which has destroyed my professional career. It took me five years to defeat one and ten years to defeat the second. There is a serious administrative error because the General Medical Council is responsible, your Lordship, about an investigation following an alert letter.
37. May I draw your Lordship's attention to page 2 of the Department of Health Regulations. Also, your Lordship, to Ahmed v Secretary of State for Health. In particular, your Lordship, may I draw your Lordship's attention to page 44 of the supplementary bundle. In that page, your Lordship, you will see that Bean J in the context of that case I could count between the statement four times where it has been stated "investigation" and "further investigation of the allegations". Now, I draw your Lordship's attention to number 17, which is page 44, in which it says at the end of that paragraph:
"Allegations listed in the previous letter should be further investigated by their solicitors."
Then he says in number 18 "Mr Ahmed should be further investigated", and then in number 24 "to investigate a total of 11 separate allegations", then in number 22 "to order further investigation of the complaints".
38. Your Lordship, I have not had one investigation, never mind four or five referrals to an investigation.
39. MR JUSTICE MITTING: Forgive me, that is not true. The General Medical Council investigated your complaints and reported on 4th March 2005 in effect that there was nothing in them.
40. DR AL RUBY: Your Lordship, I would like then to draw your attention to the Assessment Referral Committee and its function. The Assessment Referral Committee does not investigate. I give your Lordship the very simple ‑‑
41. MR JUSTICE MITTING: The Fitness to Practise Panel or the case examiners have investigated your complaints. In a detailed letter of 4th March 2005 they have set out their conclusions, which is that there is nothing in them.
42. DR AL RUBY: Your Lordship, this is not an investigation because had it been an investigation there should be a full cooperation of the mentioning of the alert letter, of the mentioning of the sexual allegations. None of these were mentioned. This is the reason why, your Lordship, when I go to the judges in the High Court they say that this is a determination, but it does not necessarily reverse the allegation. I want the investigation in the allegation because the Assessment Referral Committee does not ‑‑ by definition, your Lordship, an assessment is the process of measuring knowledge, skills, attitude and beliefs. But in any investigation it is the process of enquiry into a matter through research, follow up, study or formal procedure of discovery. There is quite a big difference. If, as your Lordship mentioned, the Assessment Referral Committee or the General Medical Council at any stage have conducted an investigation in these allegations ‑‑
43. MR JUSTICE MITTING: The case examiners conducted an investigation into your accusations against the five doctors and they reported their conclusions on 4th March 2005. There has been an investigation. You say it should be reopened.
44. DR AL RUBY: No, your Lordship, how come that an investigation by the General Medical Council has been conducted and I was not invited? Who did this investigation?
45. MR JUSTICE MITTING: The case examiners.
46. DR AL RUBY: The case examiners have never engaged me in any form of investigation. When you conduct an investigation you have to engage the two parties, your Lordship. This is not a fair way of dealing with that matter. I require and I need your Lordship to look at what happened, that the two limbs of the alert letter issuing have been actually in breach of all the regulations of the Department of Health. In the first limb which was the threshold that the allegation should have reached before you issue, and the second one is that you have to follow this with an investigation. Your Lordship, are you saying to me after five years that the GMC has done the investigation? Is it not a breach of Article 6 after five years, your Lordship, even if they have done this investigation? But I do not believe that they have done this investigation, I do not believe that the Assessment Referral Committee has ever touched on any allegations. They have looked at the allegations of the Trust ‑‑
47. MR JUSTICE MITTING: The Assessment Referral Committee decided that there was no need to take any further action against you. You had won.
48. DR AL RUBY: Because the allegations are unsubstantiated. Have you seen a name of a patient or a treatment I have ordered which has hurt anybody in that document, or from the General Medical Council, or from the hospital? All these allegations are unsubstantiated and they needed a further proper investigative panel to see the damage which happened through doctors being dishonourable. This is in the interests of the public as much as in the interests of the profession.
49. Can I refer your Lordship to document 99, page 355. In particular, your Lordship, the GMC note that the screener expresses serious reservations on the claimant (which is me), but the screener in the same time expresses that there is no evidence on which to proceed on the performance route suggesting closure of the case. If I draw your Lordship's attention to document 101, page 357, another GMC member fish out from the data protection and in that memo the GMC member is requesting the Trust to provide further information on shortcomings of the claimant, which is me. The GMC expresses lack of information to proceed down the conduct route. Can you just imagine, your Lordship, that the GMC is trying to tell the person who is complaining "Give me more information, this is not enough". This is not the way to deal with things. If you had a complaint or a real issue against the doctor you express it whole, you confidently put it to the authority. You do not expect the authority to tell you "This is not enough, give me more".
50. In page 318‑319, the screening decision form with a decision to close the complaint against the claimant. But still the alert letter is still live against me, paralysing me to work. Your Lordship, if I cannot make my points to your Lordship that it is so necessary and it is the right of every doctor who has been issued with an alert letter to have an investigation conducted in order to satisfy the second limb of the Department of Health. I am going to read your Lordship the Department of Health Regulations.
51. MR JUSTICE MITTING: That cannot have anything at all to do with it. You are miles away from the subject of your challenge. Dr Al Ruby, there are other cases I have to hear. Unless there is anything further you want to say about the decision letter of 13th April 2007, you have had more than the time that was estimated for this renewed application.
52. DR AL RUBY: May I ask your Lordship to advise me? If you are not going to proceed with an order for adjournment to conduct the investigation, what is your advice to me?
53. MR JUSTICE MITTING: I am not here to advise you, I am here to determine applications that are made. I will determine your application. Is there anything further that you want to say about the decision letter?
54. DR AL RUBY: Your Lordship, there is a lot of material concerning the procedure in the Shipman report which is relevant to my case.
55. MR JUSTICE MITTING: The Shipman report cannot conceivably be relevant to this challenge.
56. DR AL RUBY: Your Lordship, may I draw your attention to the very last document which I have submitted to your Lordship under the public interest heading, very similar to that. The very last document. I have another copy. The Shipman report, in the very last conclusion of the report of that issue. (Handed). May I read your Lordship the last paragraph, 19.262:
"My other main concern highlighted by this examination of the screening process is the failure of the GMC to investigate cases thoroughly before the preliminary decisions are taken, and in particular to make enquiries of the doctor's employer or PCT. I noted in chapter 18 that Dr (Inaudible) expressed the view that it was not part of the GMC's function to try to make a case against the doctor. In my view there is a world of difference between trying to make a case against the doctor and carrying out a thorough and impartial investigation."
Your Lordship has never had any form of investigation never mind thorough or impartial.
57. MR JUSTICE MITTING: Thank you.
58. DR AL RUBY: I am very grateful to your Lordship.
