Subramanian v General Medical Council 2002 detailed the role of the GMC's press office in colluding with the media.
Ground One – Apparent Bias
# Their Lordships first considered the question of apparent bias. The factual background was that this was not the first time that the appellant had been on disciplinary charges before the Committee. The Council did not propose to put that information before the Committee. The events in question had happened 20 years before, and the hearing had been in 1987. Consequently the Committee members knew nothing about those matters. However, on the morning of the second day of the hearing, there appeared in the Daily Mail a conventional court report of the first day's hearing. No complaint is or can be made of that, but it concluded:
"Sri Lanka-born Dr Subramanian denied failing to examine Margarita adequately. In 1987 he appeared before the GMC after five women felt the pain of caesarean births at Billinge Hospital near Wigan, where he was an anaesthetist.
He was found guilty of serious professional misconduct, but not struck off.
The hearing continues."
That passage disclosed information which the General Medical Council had wished to keep from the Committee until they had made their determination in this case.
# In the event, one member of the Committee (Mr Semmons, a lay member) certainly read that article, and another member had glanced at it without having read it. Mr Semmons on arrival at the hearing that morning found himself in the lift with 3 or 4 members of the seven-man Committee, including the Chairman. He told them that the doctor had been "up before" the Committee before. The Chairman informed the Legal Assessor of these bare facts, and Mr Kyte investigated what had happened and considered what to do – whether to halt the proceedings or to carry on. No objection was taken to that course.
# That Legal Assessor then held a private session of the hearing. At that session Ms Neale for the appellant indicated that her client was prepared for the hearing to proceed on the basis that the Committee were to be told some basic facts of the earlier hearing, namely that it had been in 1987, it related to matters which had occurred some 7 years earlier than that, it related to anaesthetics, it came before the Committee on the basis of agreed facts, and the outcome was that Dr Subramanian was admonished. But she wished the reservation to be added:
"For the avoidance of doubt, counsel for the defendant does not regard this clarification as completely remedying the position."
# The parties proceeded on the basis that the hearing would proceed while that agreement was reduced to writing, and then put before the Committee in open session. Before this happened there was a new factor discovered by the legal advisors to the General Medical Council on the 4th day of the hearing, Thursday. This new information appears to their Lordships to be the trigger for the appellant's belated application to stay these proceedings as an abuse of process, an application which they made on the last day of the hearing, after all the evidence had been called. On that day Miss Neale agreed that Ms Tracy-Forster should put an agreed statement of the new information before the Committee:
"As a result of enquiries made, it is right that you know that the press coverage which is referred to in the [original] joint statement came in two forms. The first form was an article in a regional newspaper in the north of the country last week, well before this hearing started. I understand it is highly unlikely that any member of the Committee saw a copy of that publication. The second form is that form which came to our attention on Tuesday, whereby a national newspaper published a story about the opening day of this hearing, and in that story referred to Dr Subramanian's previous appearance before the GMC. Those instructing me have been working hard over the last couple of days trying to get to the bottom of how such a thing should happen, which on any event is extremely regrettable.
Our initial suspicion was that it was due to irresponsible reporting, because, as the Committee is aware, the minutes of all previous Committees are in the public domain and therefore the information concerning the 1987 appearance is freely available to the press, through the website and other legitimate sources of information as to GMC documents. The Committee are also aware that the GMC has no power in law to prohibit publication of such material because there is authority to the effect that this Committee is not regarded as a 'court' within the meaning of the Contempt of Court provisions of the law.
Having said that by way of preamble, nevertheless it is right that the Committee should know this. In respect of the Daily Mail we have drawn a complete blank on enquiries. Those enquiries have been channelled both through my instructing solicitors, and with the assistance of your secretary, directly through the GMC Press Office. We are obtaining no response to either telephone calls or emails. It is regrettable, but it is perhaps not entirely surprising. As to how they came by the information and how they decided to publish it, I cannot help the Committee at all.
In respect of the early publication last week I can assist the Committee, although the prosecution's view is that if no member of the Committee saw this publication, this is of limited relevance. But in the interest of you knowing exactly what happened, it is right I should tell you this. It appears, regrettably, that the regional newspaper in question had obtained evidence of the 1987 hearing from their own library. Someone working for the newspaper itself, having obtained the advance notification of this hearing through an agency, telephoned the GMC Press Office to ask what the position was, so far as reporting the previous appearance.
The lady he spoke to, and he gave us a Christian name which has been confirmed as being a name belonging to someone in the GMC Press Office, said to him that she did not know, but would call him back. Then in a subsequent conversation on the same day, when she called him back, she unfortunately told him that it was safe to refer to the previous conviction, or the previous appearance, I should say. Thereafter she faxed him the memorandum of the minutes of that GMC Committee hearing.
That is the full extent of the information that we have been able to elicit as to how the matter came to the attention of the newspaper last week. I am sorry I cannot assist at all in the respect of the Daily Mail of this week. Obviously those matters, as soon as we ascertained them yesterday morning, were communicated directly to Dr Subramanians's legal team."
# By way of comment on the second and fifth paragraphs of that transcript, it is right to say that the Council has presently no legal power to prohibit publication of such material as it is in the public domain, and as bodies such as the GMC have been held not to be courts: see General Medical Council v British Broadcasting Corporation [1983] 3 All ER 426.
# Ms Neale for the appellant sought to stay these proceedings because the Committee, individually and collectively, were tainted by apparent bias. There was no dispute as to the law relating to apparent bias. The rule is set out in Taylor v Lawrence [2002] EWCA Civ 90: [2002] 2 All ER 353, 370:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
# The test lays proper emphasis on the objective observer being both fair-minded and well informed. To the basic requirement of fair-mindedness is added the need to be properly informed – that is to say that the fair minded observer should know of the protection against miscarriages of justice built into the GMC's established system for the regulation of doctors' professional conduct in England and Wales, where there is in position a long and well-established system with statutory backing, operated by those selected and elected to the task, and supported by a comprehensive appeal system – see Ghosh v General Medical Council [2001] Lloyds LR Med 933 (PC) at paras 33-34.
# Ms Neale in her skeleton argument goes considerably further than she had done when seeking a stay in court. She says that as two newspapers have had the same item of news "there is a clear likelihood/possibility that the GMC Press Office is linked to both". Therefore she says the GMC Press Office was "probably … encouraging an act which prejudiced the fair trial" of this doctor. She suggests that at best the giving of the information was "totally irresponsible", and at worst, "malign". In the real world, the answer may more likely lie in ignorance or muddle.
# Ms Neale relied upon the following events. First the reporter, knowing from his employers, the provincial newspaper with its retrieval system, that there had been an earlier hearing and that there was to be another hearing, enquired of someone in the General Medical Council Press Department whether it was "safe" to refer to the earlier appearance and/or conviction. The employee who answered the telephone apparently did not know the answer to the question, and said that she would find out and ring back. The reporter was right to enquire, and the servant of the General Medical Council was right not to answer if she did not know. So she was right to ask someone who she believed to be better informed. Their Lordships do not know precisely what question he was asked, but the answer given reflected the law as it stands today, as the General Medical Council v British Broadcasting Corporation (above) shows, to have answered the question "No, it is not safe" would not reflect the law. It was "safe" to publish that information without permission because it was not a legal wrong. But it was most unfortunate that the caller was not told that the Council hoped that the previous determinations would not be disclosed to ensure that there was no conceivable threat to the integrity of the hearing.
# None of this impinges at all on the question of any actual bias on the part of any Committee member, as Ms Neale makes clear. Only Mr Semmons had read the piece and had expressed himself to be "appalled" by the disclosure. No one has suggested that he was not appalled. He was not to know that the law did not enable the prosecution to prevent such disclosure.
# In this situation, knowledge of the 1987 proceedings came before the Tribunal when it was the clear intention of the Council that they should not. Ms Tracy-Forster made it clear that the Council were "embarrassed" by this, but:
"I do not, on behalf of the prosecution, believe that that additional information increases the likelihood of bias to the fair minded observer. I believe there is no likelihood of bias, regrettable though the publication was."
The Legal Assessor echoed the same theme at the close of his directions to the Committee:
"Unusually in this case, the Committee have heard about a previous appearance by this practitioner before the General Medical Council, in relation to agreed facts that occurred over 20 years ago when he was performing a completely different role it seems, namely that of an anaesthetist. These matters have nothing to do with the decisions that the Committee now has to make, and they should exercise no influence on them at all."
That was a clear and emphatic direction to the Committee members.
# Next, there is nothing to suggest that the person who initiated the question or the journalist who proposed the answer to it had any bias against Dr Subramanian. There seems to their Lordships no evidence that he or she was doing anything other than simply doing his or her job, and the same can be said of everyone connected with the affair. The way that the Professional Conduct Committee of the General Medical Council and the General Medical Council itself operate together is explained in R v General Medical Council, Exp Nicolaides [2001] Lloyds LR Med 525 s24:
"the function of the PCC as a panel are separate from those of the GMC as a whole; investigation/presentation and adjudication functions are kept entirely separate and are performed by different people."
# Ms Neale submits that because the General Medical Council Press Office was the source of the assurance that it was safe to publish the previous occasions of serious professional misconduct, so the rule in Nicolaides (above) would not apply. But there is no reason to believe that the General Medical Council Press Office were not operating quite independently of and separately from the Committee.
Ground One – Apparent Bias
# Their Lordships first considered the question of apparent bias. The factual background was that this was not the first time that the appellant had been on disciplinary charges before the Committee. The Council did not propose to put that information before the Committee. The events in question had happened 20 years before, and the hearing had been in 1987. Consequently the Committee members knew nothing about those matters. However, on the morning of the second day of the hearing, there appeared in the Daily Mail a conventional court report of the first day's hearing. No complaint is or can be made of that, but it concluded:
"Sri Lanka-born Dr Subramanian denied failing to examine Margarita adequately. In 1987 he appeared before the GMC after five women felt the pain of caesarean births at Billinge Hospital near Wigan, where he was an anaesthetist.
He was found guilty of serious professional misconduct, but not struck off.
The hearing continues."
That passage disclosed information which the General Medical Council had wished to keep from the Committee until they had made their determination in this case.
# In the event, one member of the Committee (Mr Semmons, a lay member) certainly read that article, and another member had glanced at it without having read it. Mr Semmons on arrival at the hearing that morning found himself in the lift with 3 or 4 members of the seven-man Committee, including the Chairman. He told them that the doctor had been "up before" the Committee before. The Chairman informed the Legal Assessor of these bare facts, and Mr Kyte investigated what had happened and considered what to do – whether to halt the proceedings or to carry on. No objection was taken to that course.
# That Legal Assessor then held a private session of the hearing. At that session Ms Neale for the appellant indicated that her client was prepared for the hearing to proceed on the basis that the Committee were to be told some basic facts of the earlier hearing, namely that it had been in 1987, it related to matters which had occurred some 7 years earlier than that, it related to anaesthetics, it came before the Committee on the basis of agreed facts, and the outcome was that Dr Subramanian was admonished. But she wished the reservation to be added:
"For the avoidance of doubt, counsel for the defendant does not regard this clarification as completely remedying the position."
# The parties proceeded on the basis that the hearing would proceed while that agreement was reduced to writing, and then put before the Committee in open session. Before this happened there was a new factor discovered by the legal advisors to the General Medical Council on the 4th day of the hearing, Thursday. This new information appears to their Lordships to be the trigger for the appellant's belated application to stay these proceedings as an abuse of process, an application which they made on the last day of the hearing, after all the evidence had been called. On that day Miss Neale agreed that Ms Tracy-Forster should put an agreed statement of the new information before the Committee:
"As a result of enquiries made, it is right that you know that the press coverage which is referred to in the [original] joint statement came in two forms. The first form was an article in a regional newspaper in the north of the country last week, well before this hearing started. I understand it is highly unlikely that any member of the Committee saw a copy of that publication. The second form is that form which came to our attention on Tuesday, whereby a national newspaper published a story about the opening day of this hearing, and in that story referred to Dr Subramanian's previous appearance before the GMC. Those instructing me have been working hard over the last couple of days trying to get to the bottom of how such a thing should happen, which on any event is extremely regrettable.
Our initial suspicion was that it was due to irresponsible reporting, because, as the Committee is aware, the minutes of all previous Committees are in the public domain and therefore the information concerning the 1987 appearance is freely available to the press, through the website and other legitimate sources of information as to GMC documents. The Committee are also aware that the GMC has no power in law to prohibit publication of such material because there is authority to the effect that this Committee is not regarded as a 'court' within the meaning of the Contempt of Court provisions of the law.
Having said that by way of preamble, nevertheless it is right that the Committee should know this. In respect of the Daily Mail we have drawn a complete blank on enquiries. Those enquiries have been channelled both through my instructing solicitors, and with the assistance of your secretary, directly through the GMC Press Office. We are obtaining no response to either telephone calls or emails. It is regrettable, but it is perhaps not entirely surprising. As to how they came by the information and how they decided to publish it, I cannot help the Committee at all.
In respect of the early publication last week I can assist the Committee, although the prosecution's view is that if no member of the Committee saw this publication, this is of limited relevance. But in the interest of you knowing exactly what happened, it is right I should tell you this. It appears, regrettably, that the regional newspaper in question had obtained evidence of the 1987 hearing from their own library. Someone working for the newspaper itself, having obtained the advance notification of this hearing through an agency, telephoned the GMC Press Office to ask what the position was, so far as reporting the previous appearance.
The lady he spoke to, and he gave us a Christian name which has been confirmed as being a name belonging to someone in the GMC Press Office, said to him that she did not know, but would call him back. Then in a subsequent conversation on the same day, when she called him back, she unfortunately told him that it was safe to refer to the previous conviction, or the previous appearance, I should say. Thereafter she faxed him the memorandum of the minutes of that GMC Committee hearing.
That is the full extent of the information that we have been able to elicit as to how the matter came to the attention of the newspaper last week. I am sorry I cannot assist at all in the respect of the Daily Mail of this week. Obviously those matters, as soon as we ascertained them yesterday morning, were communicated directly to Dr Subramanians's legal team."
# By way of comment on the second and fifth paragraphs of that transcript, it is right to say that the Council has presently no legal power to prohibit publication of such material as it is in the public domain, and as bodies such as the GMC have been held not to be courts: see General Medical Council v British Broadcasting Corporation [1983] 3 All ER 426.
# Ms Neale for the appellant sought to stay these proceedings because the Committee, individually and collectively, were tainted by apparent bias. There was no dispute as to the law relating to apparent bias. The rule is set out in Taylor v Lawrence [2002] EWCA Civ 90: [2002] 2 All ER 353, 370:
"The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
# The test lays proper emphasis on the objective observer being both fair-minded and well informed. To the basic requirement of fair-mindedness is added the need to be properly informed – that is to say that the fair minded observer should know of the protection against miscarriages of justice built into the GMC's established system for the regulation of doctors' professional conduct in England and Wales, where there is in position a long and well-established system with statutory backing, operated by those selected and elected to the task, and supported by a comprehensive appeal system – see Ghosh v General Medical Council [2001] Lloyds LR Med 933 (PC) at paras 33-34.
# Ms Neale in her skeleton argument goes considerably further than she had done when seeking a stay in court. She says that as two newspapers have had the same item of news "there is a clear likelihood/possibility that the GMC Press Office is linked to both". Therefore she says the GMC Press Office was "probably … encouraging an act which prejudiced the fair trial" of this doctor. She suggests that at best the giving of the information was "totally irresponsible", and at worst, "malign". In the real world, the answer may more likely lie in ignorance or muddle.
# Ms Neale relied upon the following events. First the reporter, knowing from his employers, the provincial newspaper with its retrieval system, that there had been an earlier hearing and that there was to be another hearing, enquired of someone in the General Medical Council Press Department whether it was "safe" to refer to the earlier appearance and/or conviction. The employee who answered the telephone apparently did not know the answer to the question, and said that she would find out and ring back. The reporter was right to enquire, and the servant of the General Medical Council was right not to answer if she did not know. So she was right to ask someone who she believed to be better informed. Their Lordships do not know precisely what question he was asked, but the answer given reflected the law as it stands today, as the General Medical Council v British Broadcasting Corporation (above) shows, to have answered the question "No, it is not safe" would not reflect the law. It was "safe" to publish that information without permission because it was not a legal wrong. But it was most unfortunate that the caller was not told that the Council hoped that the previous determinations would not be disclosed to ensure that there was no conceivable threat to the integrity of the hearing.
# None of this impinges at all on the question of any actual bias on the part of any Committee member, as Ms Neale makes clear. Only Mr Semmons had read the piece and had expressed himself to be "appalled" by the disclosure. No one has suggested that he was not appalled. He was not to know that the law did not enable the prosecution to prevent such disclosure.
# In this situation, knowledge of the 1987 proceedings came before the Tribunal when it was the clear intention of the Council that they should not. Ms Tracy-Forster made it clear that the Council were "embarrassed" by this, but:
"I do not, on behalf of the prosecution, believe that that additional information increases the likelihood of bias to the fair minded observer. I believe there is no likelihood of bias, regrettable though the publication was."
The Legal Assessor echoed the same theme at the close of his directions to the Committee:
"Unusually in this case, the Committee have heard about a previous appearance by this practitioner before the General Medical Council, in relation to agreed facts that occurred over 20 years ago when he was performing a completely different role it seems, namely that of an anaesthetist. These matters have nothing to do with the decisions that the Committee now has to make, and they should exercise no influence on them at all."
That was a clear and emphatic direction to the Committee members.
# Next, there is nothing to suggest that the person who initiated the question or the journalist who proposed the answer to it had any bias against Dr Subramanian. There seems to their Lordships no evidence that he or she was doing anything other than simply doing his or her job, and the same can be said of everyone connected with the affair. The way that the Professional Conduct Committee of the General Medical Council and the General Medical Council itself operate together is explained in R v General Medical Council, Exp Nicolaides [2001] Lloyds LR Med 525 s24:
"the function of the PCC as a panel are separate from those of the GMC as a whole; investigation/presentation and adjudication functions are kept entirely separate and are performed by different people."
# Ms Neale submits that because the General Medical Council Press Office was the source of the assurance that it was safe to publish the previous occasions of serious professional misconduct, so the rule in Nicolaides (above) would not apply. But there is no reason to believe that the General Medical Council Press Office were not operating quite independently of and separately from the Committee.
