Henshall, R (on the application of) v General Medical Council & Ors

1. LORD JUSTICE AULD: The court in its order of 28 June allowed this appeal of Deborah Henshall and, by a majority, ordered that her complaint against the three doctors, the interested parties in this case, Professor David Southall, Dr Andrew Spencer and Dr Martin Samuels be remitted to a freshly constituted Preliminary Proceedings Committee (“PPC”) for reconsideration. At the request of Miss O’Rourke, on behalf of Drs Spencer and Samuels, the court has reconvened to reconsider, in the case of those two interested parties, whether it has, and if so, whether it should exercise, a discretion to remit. The argument of Miss O’Rourke, for which we are grateful, is that in respect of two matters, where the court has found the PPC’s conduct of the matter lacking, only one of them touches Dr Spencer and Dr Samuels – Dr Spencer hardly at all, and Dr Samuels a little more. That is the PPC’s reliance on the British Medical Journal article, the Hey and Chalmers article, which this court, by a majority, as I have said, found to be in error. 2. Having considered her submissions and those of Mr Havers for Miss Henshall as to the significance of the reliance of the PPC on the British Medical Journal article in relation to Dr Spencer and Dr Samuels, we consider, and do so unanimously, that the proper approach of the court would be to adhere to the order originally expressed. In our view, the article loomed large in the considerations of the PPC, generally as between the three doctors, and not in an insignificant way in respect of Dr Spencer and Dr Samuels. Accordingly, we consider that the order should stand as drawn, save only subject to this amendment, that instead of the appellant’s complaint in relation to each one of these three doctors, considered individually, being remitted to a freshly constituted PPC, it should be remitted to the General Medical Council’s Investigations Committee, established under a new procedure but applying the former statutory scheme, namely that under the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee Procedure Rules 1988. The matter should be remitted with the utmost expedition. 3. It is common ground that the appellant’s costs of the appeal in the court below should be borne by the defendant, the General Medical Council, and that there be detailed assessment of the appellant’s costs in accordance with the Community Legal Service Cost Regulations of 2000, and, in addition, that the costs of the interested parties, the doctors, should lie where they fall. Order: Application allowed.