GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Monday, 19 January 2004
Held at:
Barnett House
53 Fountain Street
Manchester M2 2AN
Case of:
PATRICK VERNON FINN COSGROVE MB BS 1968 Lond
(Day One)
Committee Members:
Professor Norman Mackay (Chairman)
Mr Christopher Brightmore
Dr Alison Hamilton
Mr John Matharu
Dr Belinda Stanley
Mr Richard Briden (Legal Assessor)
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MR D MORRIS, of Counsel, instructed by Messrs RadcliffesLeBrasseur, appeared on
behalf of Dr Cosgrove, who was present.
MR R PEARCE, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on
behalf of the Council.
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(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
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INDEX
Page
CHARGES
AMENDED
1
CHARGES
READ
2
APPLICATION to adjourn until 2 p.m.
8
DISCUSSION re perceived bias of Panel Member
12
APPLICATION by MR MORRIS to call evidence
in abuse of process application
14
REPLY by MR PEARCE
16
REPLY by MR MORRIS
18
LEGAL
ASSESSOR’S
ADVICE
23
DETERMINATION
24
____________________
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THE CHAIRMAN: Good morning. I now formally announce that the case we are about
to hear is that of Dr Cosgrove. Dr Cosgrove is present and is represented by Mr David
Morris, counsel, instructed by RadcliffesLeBrasseur, solicitors. Mr Richard Pearce,
counsel, instructed by Field Fisher Waterhouse, solicitors, represents the Council.
Mr Morris, I understand you wish to make a submission at this point.
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MR MORRIS: Sir, not at this point but very shortly – I think the Inquiry should be
opened by the reading of the charge. I am looking at Rule 24 of the Rules and it was after
the reading of the charge that I was going to submit an objection on a ground of law to the
charge. So perhaps at this stage I would invite the Committee Secretary to read the
charge and then I can explain my position.
THE CHAIRMAN: I thought we were, perhaps, considering a request that we had an
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adjournment until 2 pm, but if you want to read the charges...
MR MORRIS: I shall be making that submission but it might assist in my explanation of
background to why I am asking for time until 2 pm if at least the charge was read.
MR PEARCE: I am content with that way of proceedings. If you are minded so to
proceed I do, however, have an application to amend the charge in various, I hope, minor
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ways.
THE CHAIRMAN: We will take these amendments at this stage since we are, it would
appear, going to read the charges.
MR PEARCE: I am obliged, sir. Two of them, in effect, are not even amendments to
what you have in front of you because they have already been altered. In fact, your copy
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does not reflect the original Notice of Inquiry in two ways: one is that the original
numbering was wrong and your copy now has been correctly renumbered; secondly, in
the original Notice of Inquiry at charge 9a on the third line of my copy, where it says
“Dr Helen Thomas”, it now says “Chubb”. Chubb is correct and it ought so to read.
The two substantive applications that I have, sir, relate first of all to paragraph 8---
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THE CHAIRMAN: Before we leave 9a, is there another name that is to be changed?
I thought Dr Melinda Thomas was Miranda Thomas.
MR PEARCE: Miranda Thomas, sir, yes – I am sorry.
On 8a this is where the renumbering of the paragraph caused confusion. It should say,
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“In the letter referred to in paragraph 7c above”.
In paragraph 10a, now having seen medical records it is clear that the date of this
appointment with Patient G was 24 February 2003, so rather than reading “in or around
January 2003” I invite you to amend it to say “on or around 24 February 2003”.
THE CHAIRMAN: Thank you. Can I just check that in head of charge 1 it is the Bristol
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Priority Clinic?
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MR PEARCE: Yes.
THE CHAIRMAN: Dr Cosgrove, can I ask you to stand, please?
THE COMMITTEE SECRETARY: The Committee will inquire into the following
charge against Patrick Vernon Finn Cosgrove, MB BS 1968 Lond; MRCS Eng LRCP
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Lond 1968 SR:
"That, being registered under the Medical Act,
‘1.
At all material times, you were practising as a Consultant Child and
Adolescent Psychiatrist working in private practice at the Bristol Priority Clinic;
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‘2.
a.
On 3 May 1996, you saw Patient A, a child who had been
diagnosed as suffering from Attention Deficit Hyperactivity Disorder
(ADHD),
b.
You prescribed drugs to Patient A as follows:
i. between May 1996 and May 1999, you prescribed
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methylphenidate (Ritalin),
ii. by July 1996, you had increased the prescribed dose of Ritalin
to 62.5 mg per day,
iii. in May 1998, you increased the daily dosage of Ritalin to
100 mg per day,
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iv. by May 1999, you had increased the dose of Ritalin to 130 mg
per day,
v. from July 1996, you prescribed an additional daily dosage of
risperidone at 1 mg per day,
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vi. by November 1998, you had in addition prescribed clonidine
as a night time sedative,
c.
Having so prescribed, your monitoring of Patient A was
irresponsible in that
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i. you did not see Patient A in person between May 1996 and
May 1999,
ii. you did not make an adequate assessment of Patient A’s
weight,
iii. you did not monitor Patient A’s growth,
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iv. you did not warn Patient A’s mother that sudden withdrawal
of clonidine could have a deleterious effect on Patient A’s blood
pressure,
v. you did not advise Patient A’s General Practitioner (GP) to
monitor Patient A as above;
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‘3.
a.
On 1 December 1999, you saw Mr B as a private patient and
diagnosed that he was suffering from ADHD,
b.
On 3 December 1999, you wrote a letter about that consultation to
Dr Humphreys, Mr B’s GP, which letter you copied to Dr K Al-Shabner
and to Mr and Mrs B,
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c.
In that letter, you stated as follows:
i. that Mr B had seen a doctor who might have been
Dr Al-Shabner,
ii. that the doctor whom Mr B had seen had been rude and
unhelpful,
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iii. that the doctor whom Mr B had seen had been scruffily
dressed,
iv. that the doctor whom Mr B had seen knew nothing about
ADHD,
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v. that the doctor whom Mr B had seen was guilty of medical
negligence,
vi. that the doctor whom Mr B had seen had demonstrated
professional incompetence,
d.
The comments that you made in the said letter were
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i. unprofessional,
ii. unsustainable,
iii. likely to cause the reader to doubt Dr Al-Shabner’s knowledge
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and/or skills;
‘4.
a.
On 27 May 1999, you saw Master C, a nine-year old boy, as a
private patient,
b.
On 29 May 1999, you wrote a letter to Master C’s GP about the
consultation, sending a copy of the letter to Dr Karin Moses, Consultant
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Child Psychiatrist responsible for the treatment of Master C under the
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NHS,
c.
The said letter requested that Master C’s GP prescribe him
risperidone and Ritalin,
d.
The letter did not contain any advice for Master C’s GP about
appropriate monitoring of Master C whilst he was taking those drugs,
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e.
Your failure to provide such advice to Master C’s GP was
i. irresponsible,
ii. not in the best interests of Master C;
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‘5.
a.
On 7 July 1999, you wrote a letter to Dr Karin Moses, which letter
you copied to Master C’s parents and his GP,
b.
In that letter, you stated
i. that Dr Moses was likely to deny some or all of what Master
C’s parents had told you about her treatment of Master C,
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ii. that Dr Moses had seen Master C only once whilst he was a
day patient on the children’s psychiatric unit at St Cadoc’s
Hospital, Caerleon, Newport, during which period Master C was
getting worse and worse when he should have been getting better
and better,
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iii. that Dr Moses owed Master C’s parents an explanation as to
why she had not prescribed Ritalin during the time that Master C
was a patient at the children’s psychiatric unit,
iv. that when Dr Moses first saw Master C he was aged 5 years
old, and that she made no diagnosis and that she had done nothing
that resulted in alleviating Master C’s malfunctioning,
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v. that nothing that Dr Moses had done when she saw Master C
aged 5, 6 and 7 years had prevented his behaviour causing him to
be asked to leave two schools and to be admitted to St Cadoc’s
Hospital,
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c.
The comments that you made in the said letter were
i. unprofessional,
ii. unsustainable,
iii. likely to cause the reader to doubt Dr Moses’ knowledge and
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skills;
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‘6.
a.
In or about May 1996 you saw Master D, a ten-year old boy, as a
private patient,
b.
You diagnosed Master D as suffering from ADHD,
c.
You prescribed Ritalin for Master D,
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d.
Your examination of Master D on that occasion was inadequate in that
i. you did not weigh him,
ii. you did not take his blood pressure,
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e.
You subsequently spoke to Master D’s mother by telephone,
following which you prescribed risperidone,
f.
You failed to make proper arrangements for monitoring the effects
of the treatment which you provided for Master D;
‘7.
a.
In or around August 2000, Oxfordshire Mental Healthcare NHS
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Trust carried out an investigation into a number of features of the
treatment of a patient of the Trust, Patient E,
b.
On 29 September 2000, Miss Wendy Samways, Complaints Manager at
the Oxfordshire Mental Healthcare NHS Trust, wrote to you requesting
copies of your medical records concerning Patient E and enclosing signed
authorisation for the release of the records,
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c.
By a letter dated 3 October 2000, you replied to
Miss Samways that you would not supply the medical records,
d.
Your failure to supply the notes as requested was
i. inappropriate,
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ii. unprofessional;
‘8.
a.
In the letter referred to in paragraph 7c above, you also stated as
follows:
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i. that Patient E had been given inadequate care by an employee
of the Oxfordshire Mental Healthcare NHS Trust,
ii. that the investigation being carried out might end in a
whitewash of such inadequate care,
iii. that you believed the investigation to be a cover up of grossly
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inadequate care received by Patient E from the Trust,
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iv. that the investigation was programmed to ensure that the Trust
was not criticised at all or only criticised in a minor way,
b.
The comments set out in the letter were
i. unprofessional,
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ii. unsustainable,
iii. likely to cause the reader to doubt the knowledge or skills of
the employees of the Oxfordshire Mental Healthcare NHS Trust
who treated Patient E;
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‘9.
a.
By a letter dated 17 November 2000, concerning a patient Mr F,
which you sent to his GP, and copies of which you sent to Dr Helen
Chubb, Consultant Psychiatrist at the Cardiff and Vale NHS Trust and
Dr Miranda Thomas, SHO in psychiatry at the same Trust, you stated that
you had diagnosed Mr F as suffering ADHD and that you had prescribed
him Ritalin,
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b.
That letter did not contain any advice to the prescribing GP about the
monitoring of Mr F,
c.
In the letter, you stated as follows:
i. that Mr F had not felt that Dr Thomas had listened to him
when he talked about his personal understanding of ADHD,
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ii. that Dr Thomas had stated that a “concentration problem is for
messy kids”,
iii. that the comment alleged to be made by Dr Thomas was an
ignorant comment,
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iv. that both Dr Thomas and Dr Chubb were arguably guilty of
medical negligence in knowing less about ADHD in adults than
Mr F,
v. that Dr Thomas had made an assertion of “therapeutic
nihilism” in saying “the consultant thinks that you have got a
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personality disorder which is not treatable”,
vi. that if Mr F responded to treatment for adult-type ADHD, it
would indicate that Dr Thomas and Dr Chubb were negligent in not
listening to Mr F and in not knowing about ADHD as a real
condition in adults, leaving room for formal complaint to the
Fitness to Practice Directorate of the General Medical Council,
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d.
The comments that you made in the said letter were
i. unprofessional,
ii. unsustainable,
iii. likely to cause the reader to doubt the knowledge or skills of
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Dr Chubb and Dr Thomas;
‘10.
a.
On or around 24 February 2003, you saw a 4 year old child, Patient
G, as a private patient,
b.
Thereafter, you prescribed Ritalin and risperidone to Patient G,
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c.
By May 2003, you were prescribing
i. Ritalin at 25 mg per day,
ii. risperidone at 0.625 mg per day,
d.
Having so prescribed, your monitoring of Patient G was
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irresponsible in that
i. you did not make an adequate assessment of
Patient G’s weight,
ii. you did not monitor Patient G’s growth,
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iii you did not adequately monitor any possible side effects;
‘11.
a.
On or around 16 July 2003, you saw Patient H as a private patient,
b.
On 19 July 2003, you wrote to Patient H’s GP, which letter you
copied to Patient H’s parents and to Dr Dover, a Consultant Psychiatrist
who had treated Patient H,
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c.
In that letter you stated amongst other things
i. that, if Dr Dover did not believe in ADHD, he might have
difficulty in being revalidated by the General Medical Council,
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ii. that Dr Dover should have studied Patient H’s school reports,
iii. that Dr Dover had behaved in a professionally unacceptable
manner by not arranging a second opinion when asked to do so,
b.
The comments that you made in the said letter were
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i. unprofessional,
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ii. unsustainable,
iii. likely to cause the reader to doubt the knowledge or skills of
Dr Dover;’
And that in relation to the facts alleged you have been guilty of serious professional
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misconduct.”
THE CHAIRMAN: You may sit down, Dr Cosgrove.
MR MORRIS: Sir, as I indicated before the charge was read, Rule 24(2) of your Rules
says that:
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“After the reading of the charge or charges the practitioner may
submit any objection on grounds of law to any charge or part of a
charge and any other party may reply to such an objection.”
Sir, I wish in due course to make an application under 24(2) that the Inquiry be stayed
because to allow otherwise and to allow the Inquiry to proceed would be an abuse of
process of this Committee.
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I am not in a position now to proceed with that submission. I will tell the Committee why
and explain the indulgence that I seek from them. May I also add that in addition to that
submission I secondly make an alternative submission, which only arises if you reject my
first submission in relation to the whole inquiry. The second submission relates to head
of charge 2, which concerns patient A. My submission in relation to that again is that to
allow that head of charge to proceed to inquiry would be an abuse of process for the
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reason that the parents of patient A have specifically expressly in writing forbidden or
refused to grant consent to either Dr Cosgrove or those investigating this matter on behalf
of the General Medical Council to have access to the patient’s medical notes. You will
see the nature of the charge, that it concerns the monitoring of patient A and an allegation
that the monitoring by Dr Cosgrove was irresponsible.
My submission, in a nutshell, will be that it would be impossible to allow Dr Cosgrove a
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fair hearing in relation to that allegation without allowing him access to the patient’s
notes, that is to say his General Practitioner notes, the notes made by the doctor who saw
him, Dr Holmes, and Dr Cosgrove’s own private notes in relation to that patient.
Can I turn back to my first and primary submission, that the whole of the inquiry should
be stayed? It arises from a particular head of charge, namely head of charge 6, which
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concerns the patient Master D. Head of charge 6 originates from information provided to
the General Medical Council by an organisation called the Citizens’ Commission on
Human Rights, whose Executive Director is a Mr Brian Daniels. The Citizens’
Commission on Human Rights is an organisation, and I quote from headed notepaper of
that organisation,
“…which was established in 1969 by the Church of Scientology to investigate and
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expose psychiatric violations of human rights.”
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Under the aegis of the Citizens’ Commission on Human Rights information was given to
the General Medical Council about the treatment by Dr Cosgrove of patient D. The
mother of patient D purported to write to the General Medical Council in the form of a
complaint. She thereafter signed a letter giving permission for the disclosure of her son’s
medical records.
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Sir, I can at this stage help the Committee if I just show you the copy of that letter,
together with, for comparison purposes, letters written by the patient’s mother in 1996 at
a time, as you will see from the charge, when Dr Cosgrove was seeing the patient.
THE CHAIRMAN: We will label these D1 and D2.
MR MORRIS: Sir, I think in terms of chronology it would probably make sense if the
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1996 letters were labelled D1.
THE CHAIRMAN: Agreed. (
Same handed)
MR MORRIS: You and your Committee may perhaps notice two matters when you
compare the letters written in 1996 and the letter written on 11 December 2001.
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THE CHAIRMAN: The letter I have is August 2000.
MR MORRIS: I am sorry, I have got the wrong letter. It is 18 August 2000. First of all,
the name of the patient’s mother is spelt differently. Secondly, from a lay perspective it
would appear that the signatures of the mother on the letters in 1996 are in a different
handwriting to the signature on the letter of 18 August 2000. We are at this moment
having an expert look at the handwriting available from the patient’s mother in 1996 and
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the handwriting available for the person who has signed that letter and other documents in
2000 and 2001 in order to get an expert handwriting opinion on whether or not that
handwriting is by the same hand or by a different hand.
I am confident that I will have information on that before two o’clock this afternoon.
That is one of the reasons why I am seeking the Committee’s indulgence in this regard. If
I can put it in a nutshell, the basis of my submission in due course will be that under the
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aegis of the Church of Scientology’s organisation, the Citizens’ Commission on Human
Rights, a complaint or information has been provided which is fraudulent, inasmuch as it
does not come from whom it purports to come from, namely the mother of patient D.
The knock on effect of that, in my submission, will be this in relation to the whole of the
notice of inquiry: that in relation to patients A to F, that is to say all but the last two
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patients, you will note that the treatment dates state 1996, 1999 and 2000, or at least the
dates are 2000. In relation to those heads of charge, the information or complaints that
were provided to the General Medical Council or derived or originated in 1999 or 2000,
as did the complaint from the Citizens’ Commission on Human Rights. The complaints
outwith the Citizens’ Commission complaint from A to F effectively lay dormant
thereafter and no action was taken, certainly on the face of the documentation that has
been disclosed to the defence so far.
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The Citizens’ Commission wrote on a number of occasions to the General Medical
Council culminating with a final letter in August 2002 making inquiries and providing
further information in relation to the information that had originally been given in the
year 2000. On 26 September 2002 the Solicitor to the General Medical Council wrote to
the Registrar formally notifying him of the information that had been provided in relation
to the heads of charges A to F.
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It would appear to the defence that that temporal link between the letter received or sent
in August and, if I may put it in the vernacular, the ball began to roll as far as this
investigation and this inquiry were concerned in the following month of September, when
all the other complaints had remained in a dormant state gives rise to the reasonable
suspicion on the part of the defence that it was as a result of Citizens’ Commission on
Human Rights complaint which we say is of fraudulent origin that the remainder of these
charges came to be progressed and, on that basis, that it would not be fair, because of the
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manipulation of the investigative procedure of the General Medical Council by the
Commission to allow this inquiry to proceed.
That, in a nutshell, is the basis of the submission that I will be seeking to make, but there
is the problem of the handwriting evidence that I wish to canvass. There is also a request
that was made to the Council which has not yet been answered and I am seeking an
answer, as to the disclosure of any internal documentation within the General Medical
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Council as to what happened following the receipt of the final letter from the Commission
in August 2002, leading up to the letter from the solicitor of 26 September 2002. Those
two matters obviously are going to cause a hiatus, and it was for that reason that I seek
the indulgence of the Committee to be allowed to delay the beginning of my submission
until 2 pm at the earliest. I am very much aware that the Committee would not wish to
waste time unnecessarily.
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What I can say is that in making the full submission I will be making reference to a report
that was commissioned by Parliament on the Church of Scientology in about 1969, and
the report was written by a Member of Parliament and a Queens Counsel Mr Foster which
became to be known as the Foster report. Members of the Committee may or may not
have heard of it or indeed may or may not be familiar with it. I will during the course of
the submission be making reference to passages in that report to seek to explain to the
Committee the nature of the Church of Scientology and its particular attitude to
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psychiatrists to give a necessary background to the submission I make, which otherwise
might appear to be an extraordinary one, namely an allegation of fraud. It might assist if
the Committee were to have that report, which has been copied now - it is quite a bulky
document – so that they could look at it if they are prepared to grant the indulgence of an
adjournment until 2 o’clock, to be able to look at it in the interim so that time could be
saved in that way. It is being copied at this very moment; it is not ready yet.
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THE CHAIRMAN: If it becomes available we will label it D3.
MR MORRIS: When it does come I will hand it to the Committee.
THE CHAIRMAN: Mr Pearce.
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MR PEARCE: Sir in explaining our position may I simply state in one sentence I hope in
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response to the outline of the submission that my silence in respect of the response does
not mean that we accept any of the premises that my learned friend has already stated.
However, we perfectly understand the rationale behind the matter being put back to
2 o’clock. We have no objection to that. We are currently seeking to establish whether
there is anything previously in the documentation of the type referred to by Mr Morris
and we should have the answer to that clearly before 2 o’clock. In terms of the Foster
report I should say I have not had an opportunity to see that and would welcome that
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opportunity. Thirdly sir may I say this, that anticipating that there were to be submissions
today that were likely to be relatively lengthy and complex, we took the liberty of not
warning witnesses to attend believing that it was unlikely that the Committee would reach
that stage in any event, so you can be comforted in one thing, that they are not
inconvenienced by any delay there may be today.
THE CHAIRMAN: Looking round the panel I suspect there is no problem about
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deferring to 2 p.m. Legal Assessor?
THE LEGAL ASSESSOR: The only question I would ask is if in the Foster report there
are there any particular passages that you would like the Committee refer to. It looks a
rather bulky document, if we can be steered to the relevant part.
MR MORRIS: That is what I was going to do.
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(The Enquiry into the Practice and Effects of Scientology (The Foster Report) was
labelled D3 and handed to the Committee)
MR MORRIS: One thing will become immediately apparent and it is a regrettable fact
that the report that you have is not paginated. On the other hand it is broken up into
sections which are fairly readily accessible, and sir looking at the content sheet at the
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front what I would invite the Committee to concentrate on in terms of the introduction
into the background to the enquiry, a, b and c, with reference perhaps only to (i) Australia
where a significant enquiry was held I think in the state of Victoria preceding the Foster
report, and that came to be known as the Anderson enquiry.
Then, to understand the nature of the enquiry that Sir John Foster conducted, if I could
specifically refer you to section 2, and obviously the Committee might be interested in
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section 3 under the heading “What is Scientology?” without perhaps going into the
function of the service with reference to (a) The Founder, (b) The Organisation in the
United Kingdom, and then I think perhaps if I could direct the Committee directly to
section 7, “Scientology and its Enemies” in section 7 at paragraph 174. That is another
way of navigating around this document. It is put in paragraphs. At paragraph 174 which
is at the beginning of chapter 7 “Scientology and its enemies” they are numbered under 4
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headings: (i) Scientologists who have defected from the cause, (ii) Anyone outside
Scientology who expresses doubt as to its truth, value, efficacy, or sincerity,
(iii) Psychiatrists, (iv) Communists. I need not concern you with the last category, but
perhaps if the Committee would care to look at the first three categories under that
heading, those are the sections which will be of particular interest.
THE CHAIRMAN: Perhaps just for the record I should check that none of the members
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of the panel has links with the Church of Scientology. There are no links. We formally
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now adjourn until 2 p.m.
(The Committee adjourned until 2 p.m.)
THE CHAIRMAN: Mr Morris, just before the break this morning I asked the Members
of the Panel if anyone was a member of Scientology or had links with the Church of
Scientology. The answer at that stage was no, but one member of the Panel involved in
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previous employment had cause to look at some work that Scientology was doing in
relation to drug addiction, as I understand it, and had some contacts with Scientology at
that stage and has spoken and referred to the work in subsequent meetings. That is not
the extent of the links between any Panel Member and the Church of Scientology, but
I thought that for the record and in case there was any perception of bias I should raise it
with both of you just to check if you have any objections we will take them on board and
if there are no objections then the Panel Member can continue.
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MR MORRIS: I am grateful. We both had notes from the learned Legal Assessor setting
out the nature of the contact. Perhaps, for the record, I ought to say what I understand, so
I get it accurately, what the nature of the contact was, which was contact with an
organisation called Narconom, which is a subsidiary or an organisation allied to or part of
the Church of Scientology; that the Panel Member, out of his official duties, visited that
organisation and in particular rehabilitation centre working with addicts and formed a
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favourable view of the work that that organisation was doing with addicts, such that when
he was no longer acting in his official capacity and had retired from that official capacity
he spoke publicly in support of this particular programme at meetings organised by the
organisation or on behalf of the organisation in Germany.
I have obviously discussed that with Dr Cosgrove and taken his views and the view he
comes to – and it is a view that I share – is this, that while that information cannot begin
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to ground a suggestion that this particular Panel Member would show or is biased in
relation to the hearing of this case, there is left a perception of bias which can only be
dealt with by the Member stepping down from this particular Committee.
I am sure you will be advised in due course as to how to approach what is the proper test
for assessing whether or not there is a perception of bias. It is, in my submission, where a
reasonably robust member of the public would perceive that there was a risk that if that
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particular person remained on the Committee there would be or there could be said to be
a realistic risk of bias in that Committee’s deliberations resulting from the presence on the
Committee of that person.
The reasons why it is submitted that there is a perception of bias in this case is that the
contact that the Committee Member had with this Church of Scientology organisation
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was not limited to purely professional observation. It went further than that: he took a
view of that organisation; he took a favourable view and, furthermore, he spoke in favour
of that organisation (the Narconom organisation) in public. In the context of the overall
organisation, the Church of Scientology, I hope the Committee will accept, having read
parts of the inquiry into that organisation by Sir John Foster that it is an organisation
where the view that is taken by those in power there that “Either you’re with us or you’re
against us”. It is in that context that Dr Cosgrove – and I accept and support him in this
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submission – is concerned that by speaking publicly in favour of an ancillary organisation
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within the umbrella of the Church of Scientology a perception of bias might arise.
I would only add this, that Dr Cosgrove instructs me that from his perception he too had
knowledge of the Narconom organisation and would not accept that its work is wholly
good and acceptable. It is for that reason that, regrettably, we have come to the
conclusion that there is a perception of bias here that can only be dealt with by the
withdrawal of that Committee Member.
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THE CHAIRMAN: Thank you very much. Mr Pearce.
MR PEARCE: Sir, may I say first of all that it was, in our submission, quite right that
your Committee Member should draw attention to this matter. It is a rather, perhaps, in
some ways obscure connection with a particular organisation but in the circumstances of
this case it was desirable and he did quite properly disclose that information.
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Sir, our position is this. It is vitally important, in our submission, that this hearing does
not become, nor should it be seen to be, a trial in any way of the Church of Scientology or
any aspect of that church. However, it is apparent from what my learned friend has
already had to say and apparent, if I may say so, from those passages of Sir John Foster’s
report to which he has referred us, that his submissions at an early stage are going to
involve, one may anticipate, a robust criticism of that church.
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As I say, the Committee may not feel it necessary to itself come to any view upon the
criticism of the Church of Scientology but, be that as it may, it would appear to form part
of my learned friend’s submissions. He knows how he is going to put his submissions on
the issue of abuse and in that context it seems to us that given the view taken by
Dr Cosgrove and on his behalf by his legal team, it would be wrong of us to seek to
persuade you that, notwithstanding my learned friend’s submissions, the particular
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Member of the Committee ought to continue to sit. Therefore, we would invite you, in
the circumstances, to accede to the submission made on behalf of Dr Cosgrove.
THE CHAIRMAN: Legal Assessor?
THE LEGAL ASSESSOR: My advice to the Committee is it is ultimately a question for
you to decide. However, I would urge you to take into account the fact that both parties
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have asked you to come to a conclusion, effectively, that there might be a perception of
bias if this particular Member were to continue sitting.
The actual test for perceived and opposed to actual bias, I would summarise in this way:
are the circumstances of the case such that would lead a fair-minded and informed
observer to conclude there was a real possibility that the Committee was biased
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unconsciously in this case? That hypothetical observer is one, I would suggest, who is a
member of the public, who is well informed, that is not complacent and neither is he
excessively suspicious. So my advice to you is you should apply that test as to whether
or not this particular Member should continue to sit and hear this case.
I do stress that nobody is suggesting that the Member is actually biased in any shape or
form, it is just a question of whether there might be a perception of someone watching
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these proceedings, a danger of unconscious bias.
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Perhaps the only other point that should be taken into account is the views of the actual
Member himself, which I believe is that he is agreeable to withdrawing if there is
objection by either party, which there has been. I do not think I need say any more on
that particular point.
THE CHAIRMAN: Do either of you wish to come back on anything the Legal Assessor
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has said?
MR PEARCE: No, sir.
MR MORRIS: No, sir.
THE CHAIRMAN: We will now go into camera for a short period and strangers will
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withdraw.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
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THE CHAIRMAN: Mr Pearce and Mr Morris, you will notice that we are one down. It
was considered that it would be better if the member concerned stood down from the rest
of the hearing. It is the view of the panel that there is no conscious bias on the part of the
person concerned. Any perception of bias would be in relation to the possibility of
unconscious bias and his words of approval were in relation to the drug rehabilitation
programme, rather than the Church of Scientology itself. Taking into account all the
factors before the panel, decision was that it would be wiser if he were to excuse himself
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from the rest of the hearing.
MR MORRIS: Sir, I am grateful and I know Dr Cosgrove would wish to associate
himself with what you have said about there being no conscious bias. Can I update you
on what has been going on this morning during the indulgence you have kindly granted
us? A handwriting expert has looked at D1 and D2 and has made an oral report that has
been communicated to us here that there is no evidence to link the handwriting on the
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GMC letter, D2, and the signature on that letter to the handwriting that we see on the
three letters that form part of the 1996 letters or matters that were part of Dr Cosgrove’s
notes.
When she says that there is no evidence to link them, she is effectively saying that in her
professional opinion there is absolutely no evidence that the 1996 signatures were written
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by the same person as the author of the 2000 signature, in other words, they are by
different hands. She says that when using every criterion of professional comparison,
whether it is proportion, shape or size, everything in her opinion is different. She further
says that it is highly unlikely that a person of the age that Master D’s mother was at the
time, that is to say, I anticipate, somewhere in her forties, would so radically alter her
signature in that space of time so that it was different in every handwriting aspect.
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She is going to prepare a written report to that end, which will be done during the course
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of today and should be available by the end of today. The significance of that evidence,
in my submission, is high and it is a matter that the Committee would no doubt like to
investigate further before coming to a conclusion on my abuse submission. The sort of
investigation that I would anticipate would be appropriate in these circumstances would
be for the person who the Council says is the mother of the patient concerned, who makes
the complaint about Dr Cosgrove, to give evidence in relation to this matter, as well as
the expert handwriting witness. The expert handwriting witness is available tomorrow
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and Wednesday, but I understand from Mr Pearce that the purported mother, if I can call
her that from our side, of Master D is not available until Wednesday morning.
The other development this morning has been the disclosure by the Council of internal
letters and memoranda dealing with the period running up to the letter written the
Council’s Solicitor to the Registrar on 26 September 2002. On the face of that
documentation that I and Dr Cosgrove have seen, there is nothing expressly set out there
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which would suggest that there were any steps taken by Mr Daniels or anyone else within
the Human Rights Commission or the Church of Scientology which had an obvious effect
on the decision to reactivate these complaints that have been made in 1999 and 2000.
What I do say on behalf of Dr Cosgrove is this: that that on its own is not sufficient.
Because of the nature of the organisation, which I hope you have had a chance to gather
from your short perusal of passages from the inquiry into the practice and effects of
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scientology, it would be impossible without hearing from this witness, the ostensible
mother of Master D, who is acting, as we know, under the aegis of the Human Rights
Commission, to know what the extent of the Commission’s efforts to influence the
General Medical Council was. We know that there were many letters from Mr Daniels
and the Commission, although you do not have them before you, to the General Medical
Council chasing up the complaint they made between August 2000 and August 2002. We
also know from the Foster report that the organisation, and that must include the
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Commission, which is an essential function within the organisation, is an organisation
that, in order to propagate its views about medicine and psychiatry in particular has
gained membership, if I can put it as neutrally as that, within organisations as set out by
Sir John Foster, namely the British Medical Association and the Royal College of
General Practitioners and is an organisation that is prepared to seek to take over
wholesale medical organisations. By way of example, at paragraph 186 in the section
dealing with the enemies of the organisation, Sir John Foster notes,
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“The scientologists attempted to take over the National Association for Mental
Health, a UK body which is affiliated to the World Federation of Mental Health
by joining it in large numbers with the object of voting a majority of scientologists
on to its council.”
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That was an attempt that was exposed. The Association resisted and the scientologists
took action by seeking injunctive relief to restrain the Association from holding an annual
general meeting. That legal action was defeated.
That is the nature of the organisation. My submission is that it would be impossible to
come to a firm conclusion, a safe conclusion in relation to the possibility that this
organisation had an improper subversive effect on the Council, whether consciously or
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subconsciously on the part of the Council had an improper subversive effect on it until
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the evidence is heard from that particular witness.
In short, given that we have here prima facie evidence – I say that on the basis of the oral
report from our handwriting expert – that there are fraudulent signature or there are
fraudulent signatures in documentation sent to the General Medical Council and that one
of those signatures appears on the actual letter of complaint in relation to head of charge
D, my submission of abuse should not proceed until we have had an opportunity to hear
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from the witness in question.
THE CHAIRMAN: Mr Pearce.
MR PEARCE: Sir, I take it at this stage that the issue we are dealing with is as to when
arguments relating to abuse of process ought to be determined. The reality of the
situation is that if that is to be after you have had the opportunity to hear from the mother
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of patient D, that must be on Wednesday because that is the only day when she will be
available to attend this week. To give a little background, she lives and works in a city
some considerable distance from here. She has child care issues as well and everything
has been organised on the assumption that Wednesday will be the day for her to give
evidence, which was our plan. That is why that is so.
Sir, I do ask you to look with care at the manner in which this submission is being
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structured in order to consider whether in fact you do need to hear from that witness in
order to decide on the submission. If I follow the submission correctly, it runs in the
following manner: first of all, it is said charge 4 is, for want of a better expression,
fraudulent, and it is so because it is based upon a complaint which, at least prima facie…
THE CHAIRMAN: Is it charge 4 or charge 6?
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MR PEARCE: It is charge 6. Charge 6 is a fraudulent charge in the sense that it is based
upon a complaint which, prima facie, it is said has been signed by somebody other than
the person who purports to make that complaint. I draw attention immediately to a
number of points about that. You will have noted with care the way my learned friend
has recited the report of the handwriting expert. She has not in fact said in the oral
conclusions that have been communicated that the letters are not signed by the same
person. She has said that there is no evidence that they were signed by the same person.
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That may be a distinction that matters. It may well be that were you to hear from the
parent of Master D there would be a perfectly adequate explanation for why the two
signatures appear sufficiently different to lead to that conclusion. One only has to
speculate for a moment on a number of possible explanations that are consistent with it
being not in any sense whatsoever fraudulent or dishonest.
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Let us assume for a moment, simply for the purpose of this argument, that you were
persuaded, upon hearing from the mother of Master D that that charge is fraudulent in the
sense in which my learned friend suggests it may be. So what? Clearly that would affect
you views on that particular charge. One can well understand that point. What about the
broader issue of abuse of process?
We come to the next stage in the reasoning. The next stage in the reasoning is, as I
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understand it, that that alleged fraud in relation to that charge, coupled with the nature of
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the Church of Scientology which has through this Commission a link with the bringing of
that charge, that connection can be taken to be a basis for a conclusion that these charges
in their entirety are only pursued because of fraudulent charge 6.
That conclusion, if you consider it, will rest upon a number of considerations. You will
read what the Foster report has to say. You will have noted the older one gets the less
distant the 1960s and 1970s seems, but we are talking about a report that is thirty years
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old plus. We are talking about matters which are historic. One is only seeing one
viewpoint. I know I have already said I do not invite you to try the issue of the conduct
of the Church of Scientology, but I know that the Church of Scientology itself would
defend its position and produce literature to seek to defend its position and say, with due
respect, that Sir John Foster got matters wrong in his report. There are differences of
opinions on those lines.
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Even if, purely for the sake of dealing with these submissions, the Church of Scientology
is, as is categorised by my learned friend, an organisation that will use any means to
achieve the end of attacking psychiatry, where does that take us? Where is the evidence
that the Church has in fact influenced the prosecution of this case? You make take it
from my learned friend’s submissions and concessions that there is nothing in any
documentation that he has seen that we have been able to disclose to him that suggests
any such involvement or influence, nor is there any other documentation that we, for our
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part, are aware of that could be disclosed that might possibly reveal any other conclusion.
MR PEARCE: One has that stage as well. I invite you to say, how is hearing from D’s
mother assisting in any event in assessing whether there has been as between the church
generally and the commission, the individual author of the letter, there has been some
undue influence upon the GMC? There won’t be any more evidence once you have heard
from D’s mother on this particular point, so we say they fail at that stage. But if I may
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say so sir I am attempting for a moment to deal with the question, not the merits of the
submission, even if my learned friend were to get over that hurdle and were to show that
some pressure unduly in some way influenced the decision to bring these charges, even
then we say that does not mean that it is appropriate to stay the charges. These are
professional disciplinary charges with individual reasons for each allegation, and in our
submission the Committee must be able to hear the evidence and determine the facts in
relation to each charge. Even if it were true that there was in some sense a bad
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motivation or some bad faith, we still submit that that would not be a ground to stay these
proceedings. It follows from all of that sir that in our submission hearing from D’s
mother will not assist in determining the stay application, save possibly, I conceive this,
in respect of a stay application specific to ground 6 where really the merits of the stay
would overlap so much if you found that that evidence was fraudulent. You may think
charge 6 is bound to collapse whether it is stayed or where ever we have to drop the case
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however it is dealt with, and we certainly would not seek to stand in the way of any
renewed application, be it on Wednesday or at any other stage given the specific on
charge 6, but in terms of a stay of the general case in so far as the doctor has a proper case
to put, in our submission it is proper to deal with that submission now and to deal with
that submission and not invite the Committee to hear from D’s mother.
Sir, may I raise one very practical issue about this, that this should not, if you are
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otherwise persuaded by what my learned friend has to say, this should not dissuade you
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from doing what he says but if you are minded in the balance this is a proper
consideration for you to bear in mind, the practical consequences of what my learned
friend is suggesting is that there is nothing as I see it for this Committee to do tomorrow
that we are already therefore 2 days down, 6 days left. From our point of view we have
lined up witnesses with a view to calling D’s mother on Wednesday and also an expert
witness Professor Taylor. Professor Taylor is only available on Wednesday. We have
had great difficulty with his availability but we have ensured he is available on
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Wednesday, and it is our concern I must say that in order to deal with abuse submissions
including evidence from D’s mother, the evidence of D’s mother live as it were actually
on the charges if the case goes ahead and the evidence of Professor Taylor, in my
submission that is a very long day’s work for this Committee. The chances are that on
Wednesday I would be in a position to say to the Committee from our point of view we
ask you to do it because we have no other way of ensuring that these witnesses can be
heard and accommodated, so that is a practical consideration about effectively not
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wasting a day and creating difficulties on Wednesday but on the merits and the substance
of it, for the reasons I have said in my submission, you will not be more assisted by an
application to stay than from hearing it from the documents as are. Unless I can assist
further.
MR MORRIS: Briefly if I can respond, in relation to the nature of the evidence from the
hand writing expert, I think my learned friend is perhaps taking a semantic point of view
D
when he says that the report that there is nothing to link the two signatures is not to say
that they were not made by one and the same person. Obviously she is unable to say that.
I suppose it is possible that the person may have changed her signature so radically in
that period of time. I don’t suppose the hand writing expert could exclude that as a
possibility, but I think she would characterise it as a very remote possibility and of course
one has to factor in my submission the fact that that signature where there is no evidence
of connection between it in handwriting terms between that and the earlier 1966
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signatures, is spelt differently itself, a significant fact in itself.
Turning to the consequences if it is accepted that there is a prima facie case that the
submission of the complaint in charge 6 is fraudulent, my learned friend asked whether or
not there is any connection between that and the decision to proceed with the other
charges outside head of charge 6. He is right in saying that there is nothing on the face of
the documentation that I have been provided with, but I submit that he is bold in
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suggesting that there will be nothing from the person who is going to come on
Wednesday to give evidence purportedly as the mother of Master D. If that person can
throw light on to the circumstances that surround the putting to paper of a fraudulent
complaint, made fraudulent by a fraudulent signature, we say given the nature of the
organisation under which the aegis of which that complaint was made, who can say as to
what light may not be cast as to the efforts of that organisation in bringing the remainder
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of the charges to life in relation to Dr Cosgrove? It would be dangerous in our
submission, given the nature of that organisation, without hearing all the appropriate
evidence to come to that conclusion about which you must be sure before deciding to
proceed without that evidence to hear this submission. And then my learned friend goes
on to say and even if it is established that there is some bad faith here which lies behind
the bringing of the other charges, that is not sufficient on its own to found a basis for
submitting that there should be a stay of the whole enquiry. I don’t accept that as a
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matter of law and I am happy to take the Committee to passages in Archbold in relation to
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that. Perhaps I should at this stage if I can take the learned legal adviser to paragraph 4-54
of the 2004 edition if he has it.
THE LEGAL ASSESSOR: I have edition 3.
MR MORRIS: It is 4-54. There has been no change I am glad to say between that and the
2004 edition. The authors there are saying, this is the principles governing the exercise of
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the jurisdiction of the abuse of process, and if I can just go back to the heading which in
the 2004 edition is at 4-48, abuse of process jurisdiction, the general setting for it is set in
Connelly against DPP 1964 House of Lords decision, Lord Devlin added a fifth ground to
the list set out in another case where particular criminal proceedings constitute an abuse
of the court’s process. What all their lordships do seem to agree upon is that the court has
a general and inherent power to protect its process from abuse. This power must include a
power to safeguard an accused person from oppression or prejudice. The views
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expressed in Connelly were considered Obiter in
DPP v Humphrys in 1977, again a
House of Lords case, only Lords Dilhorne, Salmon and Edmund-Davies considered the
point. Lord Salmon and Lord Edmund-Davies concurred with the views expressed by
Lord Devlin and Lord Pearce in Connelly while Lord Dilhorne supported the narrower
approach adopted by Lord Morris. Lord Salmon was then quoted:
“I respectfully agree with my noble and learned friend, Viscount
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Dilhorne, that a judge has not and should not appear to have any
responsibility for the institution of prosecutions; nor does he have
any power to refuse to allow a prosecution to proceed merely
because he considers that, as a matter of policy, it ought not to have
been brought. It is only if the prosecution amounts to an abuse of the
process of the court and is oppressive and vexatious that the judge
has the power to intervene. Fortunately such prosecutions are hardly
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ever brought, but the power of the court to prevent them is, in my
view, of great constitutional importance and should be jealously
preserved. For a man to be harassed and put to the expense of
perhaps a long trial and then given an absolute discharge is hardly
from any point of view an effective substitute for the exercise by the
court of the power to which I have referred.”
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And if I can take you back to the principles governing the exercise at 4-54, The power to
stay proceedings for abuse of process has been said to include the power to safeguard an
accused person from oppression or prejudice – that is Connelly – and has been described
as a formidable safeguard developed by the common law to protect persons from being
prosecuted in circumstances where it can be seriously unjust to do so. An abuse of
process was defined in the case of
Ho Chi Min v R 1992 – a Privy Council case – as
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something so unfair and wrong that the court should not allow a prosecutor to proceed in
what in all other respects is a regular proceeding.
It says that in
Baring plc, a case of 1999 decided in the Court of Appeal (Civil Division),
it was said:
“In the context of proceedings under section 6, the Company
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Directors Disqualification Act of 1986, that a court may stay
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proceedings where to allow them to continue would bring the
administration of justice into disrepute among right thinking people,
and that this would be the case if the court was allowing its process
to be used as an instrument of oppression, injustice or unfairness.”
If I can just take the learned Legal Assessor to paragraph 4-56. I hope that is the same in
his edition.
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THE LEGAL ASSESSOR: The majority decision of
R v Horseferry Magistrates Court ex
p Bennett.
MR MORRIS: Thank you. That decision has now made it clear that the doctrine of abuse
of process is not limited to situations where the defendant could not receive a fair trial.
The accused in that case has been brought to this country as a result of collaboration
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between authorities here and abroad, and in disregard of extradition procedures. The
doctrine was held to apply in such a situation even though the matters complained of
would not prevent a fair trial and even though it would not be unfair to try the accused if
he had been returned to this country through lawful extradition procedures, Lord Griffith
said that the court had the power to interfere with the prosecution because the judicial
acceptance of responsibility for the maintenance of the rule of law embraces a willingness
to oversee executive action and to refuse to countenance behaviour threatened by the
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basic human rights and the rule of law. It was the function of the high court to ensure that
executive action was exercises responsibly as Parliament intended. If therefore it came to
the attention of the high court that there had been a serious abuse of power it should
express its disapproval by refusing to act on it. Lord Bridge said there is no principle
more basic in any proper system of law than the maintenance of the rule of law itself.
In the
R v Mullen [1999], again a Court of Appeal decision, it was said that the speeches
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in ex parte inclusively established that proceedings may be stayed in the exercise of the
court’s discretion not only where a fair trial is impossible but also where it can be
contrary to the public interest and the integrity of the criminal justice system that a trial
should take place. Guidance was also given as to the sort of matters that may affect the
exercise of discretion.
Sir what I submit in the light of that is if indeed there is bad faith demonstrated in relation
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to the bringing of the charges other than head of charge 6, there is ample authority in my
submission for that granting properly a stay on the grounds of abuse of process, and that
lack of bad faith doesn’t have to be found in the heart of the prosecuting body; it can take
effect even if the body itself is an unwitting victim of that bad faith in my submission,
and that is established at paragraph 4-63a. Again I hope it is the same in the learned
Legal Assessor’s edition. It is headed “Matters relating to complainant or witnesses.”
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THE LEGAL ASSESSOR: Yes it is the same.
MR MORRIS: Under that heading matters relating to complainant or witnesses, the
orders say this:
“An abuse of process exists where the plaintiff in civil proceedings
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is in effective control of criminal proceedings against the same
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defendant to the extent that the prosecution are unable to exercise
independently their prosecutorial duties”
And two cases are cited there. Then another example is given:
“If a bank is the ultimate complainant and ‘prosecutor’, there is a
heavy burden on that bank to make available to the prosecution, for
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onward disclosure to the defence (including privileged documents)
relevant to the issues, and failure to do so might well compromise
the ‘integrity of the proceedings’; where necessary the prosecution
can produce documents that have been suitably sanitised so as to
preserve customer confidentiality.”
So what my submission is, that if a complainant is exercising an effect on the prosecuting
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body, and the comparison here would be between Mr Daniels and the Commission as the
complainant, and the GMC as the prosecuting body, if it is having such an effect on that
body that itself can amount of an abuse of process which merits the staying of the
enquiry. My submission is that if such bad faith can be established, and I accept that the
burden is on the defendant, the burden and the standard of proof on the balance of
probabilities, if that can be established, that affords good grounds for a stay. It is
impossible in my submission to come to a firm conclusion on that issue until such time as
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we have heard the evidence in relation to that particular issue. That will include the
person who signed that document or whose name was purported to have signed it.
Can I turn to the practical issue? I accept that it may cause difficulties on Wednesday. It
may lead to a long day in order to accommodate Professor Taylor if it is necessary to call
him. That is a hardship in my submission that the Committee and everyone appearing
before it should be prepared to face in order to give proper justice in this case to
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Dr Cosgrove.
THE CHAIRMAN: Legal Assessor?
THE LEGAL ASSESSOR: I must confess I do find this a little difficult. My
understanding is that both counsel are agreed that the burden is on the Respondent to
make out a case on abuse of process. As I understand it, the application is that this
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witness can be called, presumably by the GMC, on the question of whether there is in fact
an abuse of process in bringing the whole inquiry. Am I still with everybody here?
The question I am going to ask, Mr Morris, is are you going to call any evidence to prove
that there has been some, albeit unwittingly, influence on the General Medical Council in
proceeding with these charges on the question of abuse of process? Forgive me if I am a
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little confused on this, but I do want to make it clear where we are actually going.
MR MORRIS: I am not proposing to call any evidence over and above the witness; I am
not proposing to adduce any evidence beyond the evidence that would be adduced should
the mother, or purported mother, of Master D give evidence. So what I am saying is that
within her evidence there may be some light that can be cast upon the role of the
Commission over and above that which is available on the documents. On the basis of
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the documentation that we have so far, we have evidence of the complaint and of it being
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pursued on a regular basis with the Council. Beyond that, I am not going to call any
further evidence.
There is documentation that is not yet before the Committee, which I do propose to put,
dealing with such issues as, for example, the fact that the issue about the apparent
difference in handwriting between the signature of the complaint made by the ostensible
mother of Master D in August 2000 and the handwriting of the patient’s mother in 1996,
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together with the fact that the name in that signature was spelt differently was brought to
the attention of the Council on 25 January 2001 when Mr Panting of the Medical
Protection Society wrote to the General Medical Council about it and asked for
investigations to be made. Those investigations were not made for 21 months and there
was no response to that letter.
So whether or not any conclusion can be drawn from that is a matter for the Committee,
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obviously, but that is an item of additional documentary evidence that I will be putting
before the Committee in due course during the hearing of this, but as far as live oral
evidence, the answer is no – apart, of course, from the handwriting expert.
MR PEARCE: Could I just come in on that point, sir? I appreciate, given where it is
agreed the burden of proof lies that one does get into a difficult area here, but for our part
our inclination, I have to say – and I do not think this is necessarily assisted by any
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textbooks or authority – our information is that if you thought that that witness might say
something that might assist my learned friend’s case we would be minded to say we
ought to call her – to concede, effectively, what my learned friend says.
Our reasoning, if I may say so, is quite simply this. If it were not dealt with in that way,
she might in any event say something in the course of ordinary evidence that supported
the contention for a submission and in that supposed scenario you would be in a position
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of having rejected my learned friend’s submission, then finding later on further down the
line that there was in fact relevant material and you might need to reconsider it. If you
think she is capable of saying something that will enlighten your assessment of the
submission, then we would be minded to accept that we ought to call her and that my
learned friend should cross-examine her.
THE LEGAL ASSESSOR: I am grateful for that. The reason I raised it was that
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because, if you accept the burden is on you, ordinarily it would be for you to call the
evidence. I was a little confused when the Council were talking about it, but Mr Pearce,
very fairly, is saying he is prepared to call the witness so she can be cross-examined by
Mr Morris.
MR PEARCE: Yes.
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THE CHAIRMAN: So basically what Mr Pearce is conceding is that your request that
we postpone any further discussion until Wednesday morning goes ahead.
MR PEARCE: I was not conceding that, sir, I am sorry. What I was conceding was that
if you took the view that that lady’s evidence might help you then I do concede,
effectively, the adjournment until Wednesday morning. I remain of the view, for the
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reasons I have said already, that it will not help you, whatever she says, even if my
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learned friend establishes the height of the case, as he put it, is not going to assist you on
the terms of the stay.
THE CHAIRMAN: Legal Assessor?
THE LEGAL ASSESSOR: I must say I do find this difficult. I understand the arguments
of both sides. I can see the advantage to the defence, as it were, to have the chance to
B
cross-examine this lady. I would really like a few minutes to think about this because
I am finding it a little difficult. The only other question I was going to ask was this. We
have been provided with the Foster Report, which is very full and comprehensive but it
was written in 1971, which is quite a long time ago. Do the General Medical Council
accept that the aims of the Church of Scientology as described in that report are those that
they have today?
C
MR PEARCE: I have no case on that, sir, one way or the other. I noted that it was a non-
judgmental report; it made recommendations but did not make judgments. In the large
part, it does not make judgments about the Church, though quotes at very great length the
Foster Report which certainly did make a judgment on the Church of Scientology. But
no, sir, I am not in a position to accept anything – nor, if I may say so, do I think I could
ever be. It is not a question of not having enough time. I do not think we could ever be
in a position in which we would want to take a stance in respect of an organisation such
D
as this. I cannot imagine so.
THE LEGAL ASSESSOR: Mr Morris obviously has no objection to the Foster Report
going before the Committee, but given it was such a long time ago are you saying that
nothing has changed since 1971?
MR MORRIS: Sir, I am. I can present to the Committee some newspaper coverage of
E
actions taken by the Citizens’ Commission on Human Rights that postdate 1971, but
I thought out of fairness I ought to show those to my learned friend before I submit them
to the Committee. My instructions are that the attitude of the Church and the
Commission in particular has not changed.
THE LEGAL ASSESSOR: Thank you. I would like a moment to think about this
because I am finding this difficult.
F
THE CHAIRMAN: We will adjourn until roughly 3.30.
THE LEGAL ASSESSOR: Thank you.
(The Committee adjourned for a short time)
G
THE CHAIRMAN: I will turn to the Legal Assessor to give his advice before the
Committee go into camera.
THE LEGAL ASSESSOR: Mr Chairman, I am most grateful for the time I have been
given to think about this. As I have indicated, I have found it quite difficult.
H
Mr Morris wishes to make an application to stay these proceedings and, as I understand
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A
it, he wishes to have the opportunity to cross-examine Master D’s mother with a view to
eliciting evidence that would support his contention that these proceedings are an abuse
of the process.
The burden is upon the practitioner to prove that these proceedings are such an abuse.
However, as I understand it, on this occasion Mr Pearce, for the GMC, concedes that if
D’s mother can assist he is willing to call that witness so that Mr Morris may elicit
B
evidence in support of his application. The question, therefore, is can D’s mother provide
any relevant and probative evidence that would assist in advancing Mr Morris’s
submission?
On the face of it, the most that can be achieved is that the information she provided to the
General Medical Council is false and that this of itself would fall short of evidence of
oppressive behaviour or otherwise bad faith by the General Medical Council in
C
prosecuting these proceedings. However, given the width of the category of conduct
which can be described as being abusive, coupled with and, in my view, the very fair
attitude of counsel for the GMC and – perhaps this is the important part – the uncertainty
of what may be elicited in the cross-examination of D’s mother, my advice on the
particular facts of this case is that Mr Morris should have the opportunity to
cross-examine that particular witness.
D
That is my advice. As you are aware, of course, it is only advice, but that is, in my view
the fair way to proceed under Article 6 of the European Convention of Human Rights as
incorporated into our law, which requires that the practitioner has a fair trial. I have
taken into account the authorities as to what conduct and circumstances may render a
prosecution an abuse, which are set out at paragraph 4/56 of the 2003 edition of
Archbold’s Criminal Pleadings, Evidence and Practice.
E
It will be obvious to you all that I have read from a prepared note. I hope I have made my
reasoning clear on the facts of this particular case.
THE CHAIRMAN: Did you wish to come back on anything the Legal Assessor said,
Mr Pearce?
MR PEARCE: No, sir.
F
THE CHAIRMAN: Mr Morris?
MR MORRIS: No.
THE CHAIRMAN: At this point, the Committee will go into camera and strangers will
G
withdraw.
STRANGERS THEN, BY DIRECTION FROM THE CHAIR, WITHDREW
AND THE COMMITTEE DELIBERATED IN CAMERA
STRANGERS HAVING BEEN READMITTED
H
THE CHAIRMAN: Mr Morris, the panel has considered your request and has agreed that
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A
we can have an adjournment to allow time for you to bring the handwriting expert and to
allow you to cross-examine or examine Master D’s mother. The question I have to put to
you is when do you want that to be? I know that Mrs D cannot be here before
Wednesday morning. I do not know if you want to do anything tomorrow with the
handwriting expert, or do you want to do everything on Wednesday morning? There may
be minimal advantage in having the handwriting expert tomorrow, but I thought I would
make that over to you.
B
MR MORRIS: It would obviously help in terms of timing, but the thought occurs to me
that it might be helpful for the expert, as she will be an expert, to hear what the lay
witness has to say.
MR PEARCE: I must say it strikes me that, if Mrs D has an explanation, the expert will
need to know what it is. I could not put to the expert a purported explanation, because I
C
do not know what, if any, explanation there might be. I also suspect the handwriting
expert evidence would not be long in any event.
THE CHAIRMAN: We will go ahead at 9.30 on Wednesday morning, so there will be no
hearing tomorrow.
MR PEARCE: Would the Committee consider sitting at nine o’clock on Wednesday? I
D
suggest it only to try and maximise the available time. Perhaps it does cause
inconvenience.
THE CHAIRMAN: It certainly does not cause inconvenience at this end of the table. I
do not think it causes inconvenience round the table. We have always got to be mindful
we do no go on too long, otherwise we could be subject to criticism. Nine o’clock on
Wednesday morning.
E
(
The Committee adjourned until Wednesday, 21 January at 9 a.m.)
F
G
H
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GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Wednesday, 21 January 2004
Held at:
Barnett House
53 Fountain Street
Manchester M2 2AN
Case of:
PATRICK VERNON FINN COSGROVE MB BS 1968 Lond
(Day Two)
Committee Members:
Professor N Mackay (Chairman)
Dr A Hamilton
Mr J Matharu
Dr B Stanley
Mr R Briden (Legal Assessor)
--------------------------------------
MR D MORRIS, of Counsel, instructed by Messrs RadcliffesLeBrasseur, appeared on
behalf of Dr Cosgrove, who was present.
MR R PEARCE, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on
behalf of the Council.
--------------------------------------
(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
--------------------------------------
INDEX
Page
PRELIMINARY
MATTERS
1
MRS
D,
Sworn
Examined by MR PEARCE
2
Cross-examined
by
MR
MORRIS
3
Re-examined by MR PEARCE
30
Further
cross-examined
by
MR
MORRIS
36
FIONA ELIZABETH MARSH, Sworn
Examined
by
MR
MORRIS
38
____________________
A
THE CHAIRMAN: Good morning. We have a little bit of ordering to put into place in
that one of the witnesses who, technically in the body of the hearing would have been a
GMC witness, but really is attending at the request of Mr Morris.
MR PEARCE: Sir, may I explain the position here? The witness who I propose to call to
tender to Mr Morris to cross-examine is, to the best of our knowledge, in a cab
somewhere in Manchester on her way here. We are expecting her arrival at any moment.
B
I know that the handwriting examiner who we referred to on Monday is in the building
and my learned friend, understandably, wishes to speak to her briefly before the evidence
starts. There are certain documents, it became apparent yesterday, we do not have copies
of but I think my learned friend does, so he is going to provide us with copies of those.
If I may add all of that together, the best laid plans of mice and men often go awry and
C
I should not have suggested nine o’clock.
THE CHAIRMAN: That is a very appropriate quotation for Burns week!
MR PEARCE: If I suggested we started at 9.30 perhaps we would not have been ready
until 10 o’clock, whereas this way what I propose to you – I think my learned friend is in
agreement – I propose to invite you, subject to there being any hiccups, to retire now and
D
reconvene at 9.30.
THE CHAIRMAN: Mr Morris?
MR MORRIS: I entirely support that.
THE CHAIRMAN: We agree to that, so we will troop out again.
E
(The Committee adjourned for a short time)
DR COSGROVE: May I make a brief point? I understand very few people can hear
Mr Pearce at the back and this is a public inquiry. Could you ask him to hold his
microphone up to his face as he speaks?
F
MR PEARCE: I shall try to speak louder, sir.
THE CHAIRMAN: Mr Pearce.
MR PEARCE: Sir, I think we have reached the stage now where I shall call the witness
to whom reference has been made.
G
May I make one point, sir? It will be apparent to the Committee and those members
of the public who have heard the charges being read that throughout patients have been
anonymised by the use of letters for their names. In the case of the patient and the
patient’s mother, whom I am now going to call for the purpose of this part of the case, it
seems to me that it will almost certainly be the case that we will have to refer, before the
Committee, to at the very least the full name of the patient’s mother and, realistically
H
speaking, it is probably unlikely that the full name of the patient will not also be referred
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A
to.
It seems to us that at this stage the Committee has three choices: it might consider
whether it ought to sit in camera in order to protect anonymity; it might do nothing and
allow such reporting as may be considered appropriate, or it might invite those members
of the press who are present or who are represented here in any way, shape or form to
respect the anonymity of the patient and the patient’s mother. So we do not invite you to
B
go into camera. It seems to us in this particular case and in these circumstances the
interests of fairness and of all involved are best dealt with by you taking the third course
of action to which I have made reference. Therefore, on behalf of the Council, I invite
the Committee to consider taking that action in order, as I say, to seek to protect
anonymity if that can be done.
THE CHAIRMAN: I had anticipated that the witness would be referred to as Mrs D and
C
she would identify herself by writing her name on a slip of paper and passing it to both
legal teams and to members of the panel. It can occur on occasions that a name could slip
out and I certainly would ask, if we do decide to continue in public as you suggest – I am
looking round members of the Panel; I think we have got their agreement for that –
I would ask members of the press and the public to respect anonymity and confidentiality
if, by mistake, her name slips out.
D
Mr Morris?
MR MORRIS: Sir, I entirely agree that we should make an effort to anonymised and
invite the press to resist that and anonymity should be kept.
MR PEARCE: I am obliged, sir. With that, I call the witness, Mrs D. I should say that
I propose simply to ask Mrs D to write down her name and address for the assistance of
E
the Committee and that thereafter I will tender Mrs D to my learned friend for cross-
examination.
THE CHAIRMAN: Would it be appropriate for her to sign the paper as well?
MR PEARCE: Why not?
F
MRS D, sworn
THE CHAIRMAN: Good morning, Mrs D. We are referring to you as Mrs D because
we wish to protect patient confidentiality and anonymity, so we shall try to refer to that
protocol during the hearing. We are not taking all of your evidence at the present time
but we will be asking some questions of you.
G
Examined by MR PEARCE
Q
If I might add, Mrs D, to what has been said, that we propose to refer to your son
as D. Can I invite you, Mrs D, to write on the paper to your right your name and address
and to sign that document for the benefit of the Committee?
H
(The witness wrote on a piece of paper, which was handed to counsel and the Committee)
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A
THE CHAIRMAN: Just for clarification purposes, you have got your name. Is your
name your signature? Do you see what I am getting at? That is the way you would
normally sign your name, is it?
A Yes.
MR PEARCE: As I said a moment ago, I tender Mrs D to my learned friend for cross-
B
examination.
Cross-examined by MR MORRIS
Q
Mrs D, I would like you to look at some documents, please, and first of all I
would ask you to look at a document called D2 and also, I think, D1. Before I ask you
any questions, I want to add some further documents to those two sets of documents you
C
have there.
(Same handed)
THE CHAIRMAN: This bundle will be D4.
MR MORRIS: First of all, could you look at D1, which has handwriting on?
A Yes.
D
Q
You will see there three letters in handwriting and the top one in my copy is dated
September 23, 1996 addressed to Dr Cosgrove with a signature over the page. Is that
your signature?
A Yes.
Q
Did you write that letter?
A Yes.
E
Q
Turning on, and in fact going back in time to Monday, 27 May 1996, again a letter
to Dr Cosgrove with what has your name at the top and a signature at the bottom. Is that
your signature?
A Yes.
Q
And did you write the rest of that letter?
F
A Yes.
Q
Finally the first letter in time, 26 April, again to Dr Cosgrove, with your name at
the top in capital letters?
A Yes.
G
Q
And a signature at the bottom?
A Yes.
Q
Is that your signature?
A Yes.
Q
Did you write the rest of the body of that letter?
H
A Yes.
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A
Q
I want you to look, please, at D2, which is a typewritten letter to the General
Medical Council dated 18 August 2000 and at the top it has typed a name. Is that your
properly spelt name?
A
Some people spell it with a “p”, some people do not spell it with a “p”. It has got
to the point with me spelling my surname now that either it is with the “p” or without the
“p”. If it happens to be written with a “p” in it, I will sign my signature with a “p”; if not,
B
I will sign my signature without the “p”.
Q
As far as you are concerned, how do you sign your name, with a “p” or without a
“p”?
A
Without a “p”.
Q
Did you type that letter?
C
A
A friend did it on a computer. I wrote the letter and a friend put it through the
computer for me.
Q
Who was the friend who wrote the letter for you?
A
A neighbour of mine just across the back from me.
Q
Can you give us her name or his name?
D
A
Why? Why should I involve someone else who is not present here to defend
themselves? Can I ask you that?
Q
You can ask the question. I can’t answer it. I seek the permission of the
Committee to have the question put and the question answered.
MR PEARCE: At least in the first instance I would invite you to ask the witness to write
E
the name down rather than give the name orally, and if you need to consider whether it
needs to be given openly you can no doubt do so when you see where this line of
questioning is going.
THE CHAIRMAN: Mrs D, would you like to write the friend’s name on a piece of
paper?
F
(Witness wrote the name down. Same handed to Mr Morris, Mr Pearce and
the Chairman)
THE CHAIRMAN: Mr Morris have you seen the name? Do you wish to pursue your
line of questioning as to revealing the identity?
G
MR MORRIS: I would like to have the friend’s address written down as well.
THE CHAIRMAN: Would you be prepared to do that Mrs D?
A
No I am not. I am not obliged to do that. That is a friend of mine who did a letter
for me as a favour, and why should she be brought into this if she is not here? If you can
give me a reasonable answer to that question then go ahead.
H
MR MORRIS: I would like to know how close to this witness the friend lives.
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A
THE CHAIRMAN: Would you like to phrase the question along that line?
MR MORRIS: Mrs D, is this a neighbour or someone from outside Glasgow?
A
It is a neighbour.
Q
How close in terms of being a neighbour?
B
A
Ten minutes’ distance from me.
Q
If I could continue with the documentation, when you are given a letter like that to
sign which you say was typed by a neighbour friend of yours, you see that your name has
been spelt incorrectly.
A Yes.
C
Q
Do you seek to correct it?
A
Not all the time.
Q
How well did this neighbour know you before she typed the letter for you? How
long had she known you?
A
She has known me for about six years.
D
Q
Did she know your name and how it was spelt?
A
It is a question that has never arisen.
Q
Were you with her when she typed the letter?
A No.
Q
How did she know what to write?
E
A
Because I had pre-written it for her and then she put it on to the computer for me.
Q
You had pre-written it?
A Yes.
Q
How had you spelt your name on the pre-written piece of paper?
A
Without a “p”.
F
Q
And was it exactly in this form that we see on the document?
A Yes.
Q
So at the top of the handwritten letter that you had drafted there was your name
spelt without the “p”, your address.
G
A Yes.
Q
The address to which it was going and everything else that we see in this letter?
A Yes.
Q
And at the bottom had you written your name?
A
I signed that yes.
H
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A
Q
No I am talking about the handwritten draft.
A
Yes it was handwritten yes.
Q
And at the bottom you had put your name in handwriting.
A Yes.
Q
And again was that spelt without a “p”?
B
A Yes.
Q
Did you find it strange that despite the fact that you had written a handwritten
letter for her to transcribe, she mistakenly transcribed your name?
A
No because it is very common.
Q
Even when the proper name is written out and available to the person transcribing
C
it?
A
Yes. I have various documentation with me spelling the name with an “m” and
with a “p” and the Human Resources manager who filled in my expenses claim has spelt
my surname with a “p”. My contract of appointment is spelt without a “p”. My Human
Resources manager knows me very well. You can look at the pieces of paper that I have
brought down.
D
Q
Did you sign that letter in anyone’s presence?
A No.
Q
Can you look please at D4 now?
A Yes.
Q
And first in time a letter dated the 21st of June 2001.
E
A Yes.
Q
It is the second page of D4. This is a letter again to the General Medical Council
with your name properly spelt at the top, and at the bottom - again this is a printed typed
letter -typed with the correct spelling and there is the signature there.
A Yes.
F
Q
Is that your signature?
A Yes.
Q
You put it there did you?
A Yes.
G
Q
Who typed this letter?
A
Mr Brian Daniels.
Q
Mr Brian Daniels, is he as you describe him of the Citizens Commission on
Human Rights?
A Yes.
H
Q
Is he the executive director of that organisation?
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A
A
I couldn’t tell you. I have no idea.
Q
It reads as follows, doesn’t it?
“Mr Brian Daniels, Assistant Commissioner on Human Rights, has
contacted me after speaking with you on Tuesday morning. He has
informed me that the procurement of my son’s medical records may
B
have been delayed due to a possible confusion over names.”
THE CHAIRMAN: Careful with the names.
MR MORRIS: Thank you sir.
”In reviewing my previous letter to the General Medical Council
C
I have spelt my surname with a “p” as opposed to without a “p”.
This may have caused some confusion for Dr Cosgrove, so I felt that
I should write to provide you with evidence to confirm the correct
spelling. I enclose a copy of my driving licence for proof of my
surname. I hope this will resolve any misunderstanding.”
So there is no issue is there that the correct spelling of your name is without a “p” and that to
D
spell it otherwise is incorrect?
A
Yes. My son’s surname has never been spelt wrongly, and I rather think the case is
about him and not my surname, is it not?
Q
If you look at D2, your son’s surname has been spelt incorrectly hasn’t it?
A
Right enough that one has yes.
E
Q
So please be careful before making assertions.
A
I am not making assertions. I am just wondering where this is going. I am wondering
where this line of questioning is going with the “p” and without the “p”.
Q
I am afraid it is not for you to wonder but just to ask the questions and if I am going
in the wrong direction I will be told. All right? Just going back to that letter of the 18th of
August, whose idea was it to give written consent to facilitate the disclosure of your son’s
F
medical records?
A
Could you explain the question as in whose idea was it?
Q
You say you wrote a letter in handwriting along these lines. What prompted that?
A
The Overload Network in Edinburgh.
G
THE CHAIRMAN: I am sorry, we cannot hear at this end. Could you perhaps pull the
microphone towards you and if the microphone would maybe be a little towards your left
because you tend to turn your head towards Mr Morris. That is fine thank you. Would you
like to repeat the question Mr Morris?
MR MORRIS: My question was who invited her to draft this letter. I think her answer was
the Overload Network in Edinburgh.
H
A
That is correct.
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A
Q
Are you sure somebody at the Overload Network in Edinburgh did not draft
this
letter for you to sign?
A No,
positive.
Q
I want you to tell us please about the Overload Network in Edinburgh and I hope
I might be able to help you. This letter, giving consent for disclosure of records, we
know is dated the 18th August 2000. Am I right in saying that as is shown in D1 you say
B
you had been, in that letter, the hand-written letter is 1996, it is clear that your son had
been having treatment under Dr Cosgrove’s care, is that correct?
A
That is correct.
Q
And he had been prescribed two drugs, Ritalin and what you describe as Risperdal
in the letter of the 23rd September?
A
That is correct.
C
Q
And you say in that letter:
“I am writing to you to apologise for the delay in sending your fee. I have
recently moved house and changed my doctor and things are a bit hectic at the
moment. D is doing very well with both drugs, Ritalin and Risperdal. My new
doctor, whose name and address is Dr Spence in Glasgow is very helpful and has
D
no objection to prescribing the drugs. Not on the telephone, but would hope to be
in the near future. I wish again to thank you so very much for your help. If it had
not been for you, I think [D] would probably be …” - sorry, I do apologise – “D
would probably be in care. I do not want to break contact with you and I will
send your money as soon as possible”.
And then you give an old address and a new address:
E
“Thank you so very much and I hope to be able to speak to you soon”.
Is it right that after that and after you moved to your new address you did not have any
further contact with Dr Cosgrove?
A
That is right.
F
Q
But your son remained under the care of Dr Spence?
A Yes.
Q
And he continued prescribing Ritalin and Risperdal?
A Yes.
G
Q
And that continued until 1999?
A Yes.
Q
And then in 1999 did you come to hear about the organisation called Overload in
Edinburgh?
A Yes.
H
Q
Was that an organisation that in your view, and according to what they told you,
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A
took another approach to the treatment of Attention Deficit Hyperactivity Disorder?
A Yes.
Q
Is that the condition that your son was suffering from?
A
That is what Dr Cosgrove diagnosed him as having.
Q
And was that a condition that Dr Spence also continued to treat your son for?
B
A
Dr Spence continued to treat [D] on the grounds that Dr Cosgrove was the expert.
Dr Spence was by no means an expert in ADHD and took advice from Dr Cosgrove.
Q
Who did you speak with at Overload Network?
A Janice
Hill.
Q
And what did you discover about the organisation Overload Network from Janice
C
Hill please?
A
I initially had read a story that Janice had published in the Evening Times in
Glasgow regarding Ritalin and the availability of it on the streets for young kids to get
hold of and I read her story about her daughter who was roughly the same age as [D]
undergoing similar problems and once I had read her story I decided to contact Janice to
see what offer of help that she could give me rather than medicate my son, which by this
point his behaviour was starting to deteriorate and Janice had suggested instead of putting
D
chemicals into my son’s body to try vitamin tablets, such as the fish oils, vitamin B
complex, a range of various multivitamins.
Q
And as a result of seeing her did you take your seen to see Professor Steven
Baldwin?
A That’s
correct.
E
Q
Was he a professor in psychology at the School of Social Psychology at Teeside
University, Middlesbrough?
A Yes.
Q
I wonder if some documentation could be shown to you please?
(Same handed)
THE CHAIRMAN:
This will be D5.
F
MR MORRIS:
(To the witness) Mrs D, let me just, so there is no mystery about this,
these are letters that have been extracted from your general practitioner records, the
records kept by your general practitioner, who at the time was Dr Spence, all right?
A Yes.
G
Q
And, I think, actually chronologically we start at the back of the document, which
is a letter of referral from Dr Spence to Professor Baldwin; do you see that?
A Yes.
Q
Where he tells the Professor that over the last few years we have been treating D
as having ADHD and he sets out the problems that your son had had and the fact that he
had been on Ritalin mixed with Risperidone, which I think is another name for Risperdal
H
on the instructions of Dr Cosgrove of Bristol and that had been stopped, various other
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A
things had been tried and at the time he was on no medication. Was that decision to stop
the Ritalin a decision taken by your son or by Dr Spence, can you recall?
A By
myself.
Q By
yourself?
A Yes.
B
Q
And then, just running through the documents, on the 3rd February ---
THE CHAIRMAN: The middle part of this page and the next page has not come out very
well on the photocopy?
MR MORRIS: It has not, sir, you are right, and we do not have the originals. I do not
know whether the Council have the originals; I do not think the originals are available,
C
but it perhaps need not trouble you too much, but it is a request to the practice manager at
Gilbertfield Medical Centre, which is where Dr Spence practises, or used to practise,
seeking information ---
MR PEARCE: I am terribly sorry to interrupt. We do think we have the originals, we are
just seeking them out.
D
MR MORRIS: … seeking information as to where to send invoice for the consultation
with the Professor.
(To the witness) That letter appears actually to have been copied in the records, the next
document at page 62 and then at page 61, the 11th February, Dr Spence writing back a
response:
E
“With regard to your letter of the 3rd February regarding D and an assessment
carried out by Professor Baldwin. First of all, I never requested this assessment, I
think it was organised by his mother through some organisation in Edinburgh.
We have never received an invoice for any form of patient care from a University.
Presumably if this is the routine event, then you will know that it may have to be
sent to Greater Glasgow Health Board. Otherwise this letter just leaves me
confused”.
F
That organisation, is that the organisation Overload?
A Yes.
Q.
And then, finally, 29th February 2000, a letter from Dr Spence to Overload
Network for the attention of Janice Hill:
G
“Mrs D attended you with D and subsequent to this she asked me to write a
referral letter to Professor Steven Baldwin at your request as a matter of courtesy.
As a result of this, I have received a bill from Professor Baldwin, which is
obviously something general practitioners in Glasgow are very unused to, but
Professor Baldwin seemed extremely surprised at my reaction, particularly as I
had written a referral letter”.
H
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A
Having seen Professor Baldwin with your son and spoken with Janice Hill, how did you
come to make contact or be in contact with Brian Daniels of the Citizens Commission on
Human Rights?
A
Janice Hill forwarded my letter to Brian Daniels.
THE CHAIRMAN:
(To the witness) I am sorry, we are having trouble hearing you?
A
Sorry. Janice Hill from Edinburgh forwarded … asked, was quite concerned
B
about the drugs that [D] was prescribed by Dr Cosgrove and was concerned enough to
inform Brian Daniels from the Citizens of the Human Rights, who in turn contacted
myself.
MR MORRIS:
(To the witness) And what did you learn from Mr Daniels when he
contacted you?
A
Could you explain that further; in what way?
C
Q
Yes. He contacted you?
A Yes.
Q
What did he say to you, did he write to you or did he telephone you?
A
He wrote to me.
D
Q
Do you have the correspondence?
A
Not with me I do not.
Q
What did he say in his letter?
A
That he had been contacted by the Overload Network in Edinburgh and was
concerned by the issues raised by Janice Hill in accordance with [D] and the medication
he had been given by Dr Cosgrove and I cannot remember exact word for word what
E
actually Brian had written in the letter, but basically from that point on I started
correspondence with Brian, because I was concerned when I found out more about the
drug Risperidone and the effects that it can have on children and decided to take the
matter further and Brian was the one that helped me get to this point.
Q
Did he tell you that the Commission of which he was the director had been
established by the Church of Scientology?
F
A Yes.
Q
To investigate and expose psychiatric violations of human rights?
A Yes.
Q
And after that first letter to you, you say you got into correspondence with him?
G
A Yes.
Q
Tell us, please, the gist of the correspondence and how matters developed with the
Commission?
A
Matters developed in a way that I should say Brian was the Scientologist – I am
not a Scientologist, I am a Roman Catholic and I have been baptised and made my holy
communion and married in the chapel. I have nothing whatsoever to do with the
H
Scientology. I was concerned, however, about finding out more, as I said before, about
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A
the drug treatment that Dr Cosgrove undergoes, the way he sends private prescriptions
through the post and does not inform the patient of what the drug is about; any of the side
effects regarding the drug. So my main concern was, in line with Brian, to stop this man
from doing this any more. So Brian and I corresponded with each other simply to do with
the drugs that [D] had been prescribed, on my own initiative.
Q
Did it come to the stage where he made a complaint to the General Medical
B
Council about an aspect of Dr Cosgrove’s care of your son, D?
A Yes.
Q
Did he tell you anything about other complaints against Dr Cosgrove?
A
No. Overload told me about other complaints. Overload had a child in
Edinburgh. I do not know the person.
C
Q
Overload had a child in Edinburgh?
A Yes.
Q
Who had been under the care of Dr Cosgrove?
A
As far as I am aware.
Q
They told you about that?
D
A Yes.
Q
The complaint that was forwarded to the General Medical Council by Brian
Daniels, did you authorise the sending of that complaint?
A
Yes, I did.
Q
As part of the authorisation of that complaint you told us that you signed the letter
E
that we see in D2 on 18 August 2000, is that right?
A Yes.
Q
Are you sure that that is your handwriting and the signature there?
A
I am positive that is my handwriting.
Q
If that is your handwriting, Mrs D, are you sure that the letters we see at D1 are
F
your letters, written and signed by you, the 1996 letters?
A Yes.
Q
I suggest that those letters in 1996 were signed by somebody different from the
person who signed the letter on 18 August 2000?
A
You can suggest what you want, but I signed all the letters that are in front of me.
G
Q
Again looking at D4, the signature on 11 December 2001 letter and the 31 June
2001 letter, again I would suggest that those signatures were not written by the same
person as wrote the letters and signed the letters in 1996?
A
As I said before, you can suggest what you want. If you want me to write the
signatures now, in front of the people sitting here, I will do that.
H
Q
You have given a signature just now?
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A
A
I will give you a signature to the one I have written in 1996 if you like, if that is
where the confusion is coming from.
Q
We may come to that, but leave it for the moment. Again, just to make my
position absolutely clear, the letter of 21 June enclosed a copy driving licence?
A Yes.
B
Q
That has got a signature on it. Is that your signature?
A
What copy is that?
Q
It is the back page, last page of the bundle D4. It is attached to the letter of 21
June 2001?
A
Yes, that is my signature.
C
Q
Do you have that driving licence available?
A
Unfortunately, I do not, no. The driving licence was destroyed.
Q
Why was the driving licence destroyed?
A
It was torn up by mistake, along with some other documentation. It was not in its
proper folder, it was in amongst some documentation I was throwing out, so the driving
licence was initially torn up. That has never, ever been replaced again because initially I
D
had the old-fashioned driver’s licence, which was the paper one; the new one, as you
know, is a card where you have a photograph taken. I do not have a car at the moment so
I do not need a driver’s licence, so I have not gone to the bother of getting a picture taken
and applying for a driver’s licence.
Q
Again, I suggest that whoever wrote that signature is not the same person who
wrote the 1996 correspondence?
E
A
You can suggest what you want.
Q
So can you help us, please, with what your understanding of Overload’s attitude
to Dr Cosgrove was? I think you said it was their intention to stop him treating him this
way?
A
Did I say that?
F
Q
I do not know; I may be incorrect. What is your understanding of what
Overload’s ambitions were in relation to Dr Cosgrove?
A
Initially to Dr Cosgrove but not just Dr Cosgrove, to any doctors or psychiatrists
out there who think they can medicate children and give them mind-altering drugs, and
especially drugs that are not licensed for the specific ADHD as [D] was diagnosed by
Dr Cosgrove.
G
Q
What was their plan in order to prevent this as far as Dr Cosgrove was concerned?
A
To follow complaints by people that came forward to them that we were not
happy with Dr Cosgrove’s treatment or follow-up treatment.
Q
What about the Citizens Commission for Human Rights?
A
What about them?
H
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A
Q
You had correspondence with Mr Daniels, did you not?
A Yes.
Q
Did you meet him?
A No.
Q
Did you speak to him?
B
A
I have spoken to Brian, yes.
Q
When did you first speak with Brian?
A
When I initially went to Overload, which was four years ago.
Q
And when you spoke to him there was he present?
A
No. How could he be present if I have not met him?
C
Q
Did you speak to him on the telephone?
A Yes.
Q
Was that at Overload’s offices?
A
No, it was my home.
D
Q
Did he telephone you?
A
Yes, he telephoned me after Janice Hill had said she was going to write to Brian
and would I mind forwarding my home telephone number in order that he would be able
to contact me and I said “Yes”.
Q
What were Brian’s plans for Dr Cosgrove?
A
Brian was of the same opinion as myself, that Dr Cosgrove was giving out
E
medicines to children, quite flippantly, to be honest with you. What doctor sends a
prescription through the post, a private prescription through the post to a patient who he
has seen for 25 minutes and has offices down at Bristol, and gives you a second line drug
over the telephone, not telling you what the drug is, only to tell you on the telephone that
this second line drug will be introduced to take away any of the side effects that the first
line drug, which was methylphenidate, commonly known as Ritalin, given to [D], this
will take away [D]’s not being able to eat, not being able to sleep; not giving me any
F
information at all about the drug, not telling me it was a drug for manic depressives or
schizophrenics, not telling me it was a drug that was not licensed for children under 16 –
and [D] was 10 years old at this point – and this was sent through the post to me.
Q
That information that you have just given us, where did you get all that from?
A
I can read.
G
Q
Where did you read it?
A
I had various papers that Overload had regarding the drug.
Q
So this was documentation that came from Overload?
A Yes.
H
Q
So what did you understand Brian Daniels was proposing to do about
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A
Dr Cosgrove?
A
Expose his treatment of over-medicating young children.
Q
And how was he going to do that?
A
Specifically write to the GMC.
Q
So he was going to write to the GMC not only in relation to your child but in
B
relation to other children?
A
I cannot answer for other children.
Q
Is that your understanding?
A
I can only speak for myself, but I have no knowledge of other children Brian was
acting for.
C
Q
I know you have no knowledge yourself, but was it your understanding (I think
you said) that Brian Daniels was going to write to the GMC about your child and other
children?
A
Did I say other children?
Q
I think you did. I will be corrected if I am wrong.
A
I do not know if I said other children – I did not. I said my son.
D
MR MORRIS: I do not want to take a bad point....
THE CHAIRMAN: What I noted down was his intention was to expose Dr Cosgrove’s
prescribing and over-medicating of young children.
MR MORRIS: Thank you.
E
MR PEARCE: My note closely agrees with yours.
MR MORRIS: That is what is recorded that you said, Mrs D, that it was Brian Daniels’
plan to expose the over-medication of young children. Was that right?
A
Yes, I would say so.
F
Q
Can I just ask you again to write down on a piece of paper, please, Mrs Daniels,
the full name of D’s father?
(The witness wrote on a piece of paper, which was handed to counsel and the Committee)
MR MORRIS: Just some more information I would like you to write down on a piece of
G
paper. I think in the correspondence. Actually it may not be necessary. No it will not be
necessary. Can I ask you this, has D your son had German measles?
A
Yes.
Q
Has he suffered any broken bones?
A Yes.
H
Q
Can you tell us which?
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A
A
He had broken his wrist a few times. He has been at the hospital with staped
ankles.
Q
With what ankles?
A
He has staped his ankles when he has fallen off things.
Q
You used a word that as I don’t come from Glasgow I didn’t understand about
B
your son’s ankle.
A Yes.
Q
Staped?
A
Yes.
Q
What does that mean? The Chairman is looking extremely knowing and I am in
C
ignorance. It may be that some of the Committee, certainly not all of the Committee ---
THE CHAIRMAN: Another term would be he had sprained his ankles.
MR MORRIS: Did he ever suffer a fracture of any bones in his ankle?
A
Yes he did.
D
Q
Can you just help us with this please, first of all where did you visit him?
A
Down in the Bristol Priory clinic.
THE CHAIRMAN: Could I check that it is the Priory clinic and not the Priority clinic?
We raised this at the beginning. It is Priority.
A
Well Priority. I know it was like a surgery. I think Dr Cosgrove had one room in
this. It was a Health Centre. Dr Cosgrove had a room in the Health Centre because there
E
was a reception desk and I don’t know whether Dr Cosgrove rented the room privately or
not because there were other doctors and patients coming into the room, coming into the
Health Centre.
MR MORRIS: Can you remember the address of it?
A
No I can’t, not off hand.
F
Q
You have described it as a Health Centre.
A
Yes, that is what I would say it was.
Q
In which town did you visit Dr Cosgrove?
A Bristol.
G
Q
Are you sure it was Bristol?
A
Yes I am sure it was Bristol.
MR MORRIS: Yes, thank you.
MR PEARCE: Sir, before I ask questions of this witness by way of re-examination, I
seek if I may through you some clarification for the purposes of this stage of where we
H
are with the proceedings. A lot is being put to this witness. It is quite clearly being put
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A
that there are issues about the signature, and I accept that that is clearly put, but on
Monday my learned friend repeatedly used the expression that this charge was a fraud,
and what I took him to mean by that – maybe I am incorrect – was that either the person
who I was going to call today, the person whom I have called today, was not truly the
mother of the person who had been treated by Dr Cosgrove, and so it was fraudulent in
that sense, or in the alternative that if she was the mother of the person who had been
treated by Dr Cosgrove, she in fact had no complaint whatsoever against Dr Cosgrove but
B
had been put up, for want of a better expression, to complaining by a third party, and
clearly it seemed to me to be being suggested that that was at the commission of Mr Brian
Daniels. If either of those two or some other interpretation of what a fraud may mean is
part of my learned friend’s case as part of his submission on abuse, then his case in
respect of that fraud should in my submission be put to this witness so that I know the
factual arguments I must meet, and if I may so sir so that you do sir too know what
actually is being said about this witness, this complaint. Of course I don’t ask him to put
C
his wider submission on the point but on the specific factual matters in so far as the
allegation that this is a fraud is being pursued, what does that mean factually, those points
should in my submission be put to this witness now.
THE CHAIRMAN: Mr Morris?
MR MORRIS: I quite understand the request, and before I make the position absolutely
D
crystal clear I would like to take some instructions from Dr Cosgrove who has listened to
the evidence, if I could be permitted to do that.
THE CHAIRMAN: You want a break just now?
MR MORRIS: A short break.
E
THE CHAIRMAN: We will have a break and re-convene at 11.15. Mrs D, could I
remind you that during the break you remain under oath and you mustn’t discuss your
evidence with anyone.
A: Sure.
(The Committee adjourned for a short time)
F
MR MORRIS: Sir, before I put the case that my learned friend invited me to put, quite
understandably, to the witness I do need to show her and ask her about two further
documents. I am afraid they are being photocopied at this very moment but they should
be with us shortly. Could I ask for the indulgence of the Committee while that takes
place? Sir I am grateful for the time you have given me. Mrs D, I want you to have a
look at two documents to begin with if I can have them.
(Same handed)
G
THE CHAIRMAN: This one dated the 18th of August 2000 would be D6. This one
dated 31st October 2000 will be D7.
(Same handed)
MR MORRIS: (
To the witness) Mrs D, I think if we look at D6 please. This is a letter
which has the same date, 18th August, as the letter in D2, which is the letter you say you
signed and was typed by a friend of yours – a neighbour – on the 18th August 2000. D6
H
is again a letter to the General Medical Council with your name wrongly spelt at the top
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A
and on the second page there is your name in type wrongly spelt at the base of the letter
and there is no signature. What can you tell us about that document, have you ever seen
it before?
A Yes.
Q
When did you see it first?
A
I wrote the letter first. I had written in my handwriting.
B
Q
You had written it in your handwriting?
A Mm.
Q
Do you still have the hand-written letter anywhere?
A No.
C
Q
Who typed it?
A Brian
Daniels.
Q
Brian Daniels typed that, but he did not type the letter we see in D2 of the same
date?
A No.
D
Q
When did you first see the typed version of that letter?
A
To be honest I can’t remember.
Q
I suggest you certainly did not see it before it was sent to the General Medical
Council, did you?
A
I suggest you are wrong.
E
Q
Because I suggest if you had seen it you would have signed it?
A
I suggest you are wrong.
Q
Why did you not sign it if you saw it before it was sent to the General Medical
Council?
A
Probably because it was typed out.
F
Q
Because it was typed out you did not think there was any need to sign it?
A No.
Q
Why did you sign it?
A
It may have been an oversight.
G
Q An
oversight?
A
Could have been.
Q
This is a letter of complaint about Dr Cosgrove?
A
That is correct.
Q
To his disciplinary body, is it not Mrs D?
H
A
That is correct.
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A
Q
And you think it was an oversight that you did not sign it?
A Yes.
Q
Before it was sent?
A Yes.
B
Q
I suggest you never saw it before it was sent?
A
I suggest you are wrong.
Q
Look at D7 please, the letter dated the 31st October, again to the General Medical
Council, this time from Brian Daniels?
A Yes.
C
Q
Which says this, and I will not mention names:
“Re D” – spelt incorrectly.
That is right, is it not?
A
Excuse me, say that again?
D
Q
Your son’s name is spelt incorrectly?
A
Yes, that is correct.
Q
“Dr Patrick Cosgrove.
Thank you for your letter of 18th October. I have contacted Mrs D” – spelt
incorrectly – “and she has provided me with the following information:
E
1.
D’s date of birth – 12/02/86.
2.
The exact date that she took D to see Patrick Cosgrove is not known, but it
was in the month of May 1996.
3.
The place that she attended with D was the Bristol Priority Clinic in Bath.
F
4.
Here address in September 1996 was …” – an address in Glasgow.
5.
The name of her GP in September 1996 was Dr John Spence”.
Do you recall speaking to Mr. Daniels and giving him that information?
G
A Yes.
Q
Did you tell him that the place you attended with D was the Bristol Priority Clinic
in Bath?
A Yes.
Q
And is that what you felt then in October 2000 was the place where you saw Dr
H
Cosgrove?
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A
A Yes.
Q
Why is it that today you told this Committee that you saw Dr Cosgrove in Bristol?
A
It is the Bristol Priority Clinic, so I travelled down to Bristol to see Dr Cosgrove.
Q
Yes. You told us that you saw Dr Cosgrove in Bristol at the Bristol Priority
Clinic?
B
A Yes.
Q But
here in this letter, according to information you say you gave to Brian
Daniels, you were telling Brian Daniels that the place you attended for consultation was
Bath; can you help us with the disparity?
A
Disparity is maybe my geography is not that good. I got a train from Glasgow
down to Bristol, stayed overnight in a bed and breakfast and went to the Bristol Priority
C
Clinic. If it is in Bath, sobeit.
Q
You know that Bristol and Bath are two completely separate cities, do you not
Mrs D?
A
Well why is it called the Bristol Priority Clinic if it is in Bath?
Q
Can you answer my question; you know that Bristol and Bath are two completely
D
different cities?
A
Yes, I do, I do.
Q
I suggest that the person who gave that information to Brian Daniels was not the
mother of D?
A
So you are accusing me of not being the mother of D?
E
Q I
am.
A
Well can I say that you are a liar and I would ---
THE CHAIRMAN: (To the witness) I know that it is difficult for you and it is
frustrating, but could you please respond “Yes” or “No”?
A
Okay. I am Mr D’s mother.
F
MR MORRIS: (To the witness) Because the mother of Mr D would have known very
well when giving important information in relation to a complaint being made to this
Doctor’s disciplinary body about the place she took her son many, many miles to see Dr
Cosgrove ---
A Yes.
G
Q
… on only one occasion ---
A That’s
right.
Q
… was in Bristol and not in Bath?
A
I travelled down from Central Station to the Bristol Priority Clinic and went to see
Dr Cosgrove the following morning.
H
Q
I would like you to look, please, at another document. (Same handed)
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A
THE CHAIRMAN: This will be D8.
MR MORRIS:
(To the witness) Mrs D, this is a five page document which is entitled
‘Statement of Mrs D’ and can you look at the last page please? There is a signature there
over the typed name of Mrs D; is that your signature?
A Yes.
B
Q
Just have a look, please, at that signature and indeed the signature you wrote on
D2 three years earlier on the 18th August 2000, which you say you deliberately signed
incorrectly with a ‘p’ in?
A Yes.
Q
And then just have a look please at the signatures on the three hand-written letters
C
of 1996 at D1. The 1996 signatures look very different from the signatures of 2000 and
2003, do they not?
A
The one in 1996 the first letter is actually printed rather than the signature if you
look at it. The other one is a shortened version, the ‘e’ is not signed as in my first name,
as in the next letter.
Q
So would you agree with my comment that they look very different from the
D
signatures of 2000 and 2003?
A
I can see the one in 1996 is printed rather than the signature; the rest of them are
the same apart from the ‘p’.
Q
So you would not call that a signature as such in 1996?
A
No, because as you can see by the handwriting it was a hectic time, I was moving
from one place to another and trying to organise, I had lost contact with Dr Cosgrove at
E
that time and I wrote this letter and more or less signed it at the bottom, but not as I
would say a proper signature as in a written.
Q
I think you were asked yesterday on behalf of the General Medical Council and
the solicitors acting for them to bring some hand-written material from that period, 1996 -
--
A
Yes, I was already on the train at that time before I could get information from
F
any of the solicitors, I was travelling down to Glasgow at that point.
Q
Are you saying that your signature in 1996 then looked different from what we
see on those three letters?
A
I am not saying it looked different, I am saying I have signed it differently.
G
Q
Do you accept it is signed differently?
A Yes.
Q
If I can just take you to the body of the statement please. In the first page of the
statement you give an outline of the history concerning your child D, leading up to the
time when we see over the page in paragraphs 8 and 9 you travelled to see Dr Cosgrove;
is that correct?
H
A Yes.
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A
Q
And you talk about him being seen at school by the educational psychologist and
you talk in paragraph 7 that you heard about the disorder, Attention Deficit Hyperactivity
Disorder, on a television programme being discussed by a Mr. Christopher Green and you
got in touch with a family support group run by a Jill Meads and you explained that your
son had been seen by a number of general practitioners who were unable to help with his
behaviour and then the suggestion of seeing Dr Patrick Cosgrove?
B
A
That is correct.
Q
The child D had not only been seen by general practitioners I suggest, but had
been seen by a consultant psychiatrist before seeing Dr Cosgrove; do you know about
that?
A Correct.
C
Q
The child D, shortly before seeing Dr Cosgrove, had spent at least two weeks as
an in-patient in a psychiatric ward at the Children’s Hospital?
A Correct.
Q
None of that information appears in that statement, does it?
A No.
D
Q
And I suggest that as the mother of D, the mother of D in making such a statement
would have included such information?
A Why?
Q
In the information; do you accept that or not?
THE CHAIRMAN:
(To the witness) Mrs D, could I ask you to answer the questions
E
rather than ask questions?
A
Okay. Could you ask me the question again?
MR MORRIS: (
To the witness) Yes. The mother of D in making a statement about the
treatment her son had received at the hands of Dr Cosgrove and setting out the history,
his medical history prior to seeing Dr Cosgrove, would have included the important
information that he had been under a child psychiatrist and indeed an in-patient in a
F
children’s hospital, I am suggesting?
A
I understand where you are coming from, but I did not think that was important in
the making of this statement because this statement was about the treatment of Dr
Cosgrove, not the treatment of [D] by the National Health Trust in Glasgow.
Q
In the course of making this complaint about Dr Cosgrove you signed an authority
G
to disclose his notes?
A Correct.
Q
Have you seen those notes?
A No.
Q
So do you know to whom the notes were disclosed?
H
A
The General Medical Council and parties that were to be covered at the hearing
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A
today, as far as I am aware.
Q
Looking at paragraph 10 please? The author of that statement, and you say you
are the author of that statement, says that D saw Dr Cosgrove at a hospital in Bristol
where he rented a room. That, I suggest, is wholly inaccurate, not a hospital?
A
Correct, a hospital or a health centre. ‘Hospital’ may have been the wrong word,
possibly ‘health centre’ should have been written down.
B
Q
So it was not a hospital, you agree that?
A Yes.
Q
You say that in the statement, which you say is yours, that the consultation lasted
between 15 and 20 minutes, is that right?
A
That is correct.
C
Q
The mother of D, I would suggest, would have known that the consultation lasted
at least an hour and probably an hour and a half?
A
The consultation originally was booked for one hour, which the fee for the hour to
spend with Dr Cosgrove was £160. Myself and my son saw Dr Cosgrove, we were with
him for between 15 to 25 minutes and then we were released with a private prescription
in my hand to go to the nearest chemist. Can I just add that Dr Cosgrove made a remark
D
regarding my son saying “They’ve travelled all the way down from Glasgow and this
child hasn’t been able to sit down on the train for all the time they’ve been travelling”,
and he made a joke about it to another patient who was passing by – “She’s travelled all
the way down from Glasgow and this kid hasn’t been able to sit in his seat”.
Q
Paragraph 18. The author of this statement says:
E
“Dr Cosgrove again telephoned me to see how [D] was and I told
him the Risperidone appeared to be helping with [D] eating and
sleeping. He had become lethargic but I thought that was how he
should be on the medication.”
Just to set the picture a little more clear, perhaps I ought to do it chronologically. If I take
you back to paragraph 13, at the end of the consultation you stated:
F
“Dr Cosgrove informed me he would check on [D]’s progress in a
fortnight by telephone and his fees for this would be £25.00.
Dr Cosgrove to telephone two weeks after the initial consultation.
I informed him that I was still having problems with [D]’s behaviour
G
and he decided to increase the dose of Ritalin. A further two weeks
passed and again Dr Cosgrove contacted me by telephone. By this
time I was very worried about [D] as he was not eating any food nor
was he sleeping and he has lost a lot of weight.
I told Dr Cosgrove of my fears and felt that the medication was not
working as well as I had hoped. At this point Dr Cosgrove told me
H
that he was going to prescribe another drug which to the best of my
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A
recollection he did not name but did state that it would help [D] to
sleep and eat and would counterbalance the Ritalin and resolve any
behaviour problems.”
Then 17:
“Dr Cosgrove sent me a private prescription for Risperidone which
B
I had dispensed at Boots Chemist at the cost of £30.00 for ten
tablets. I remember when I took the prescription for dispensing the
chemist staff appeared alarmed for what had been prescribed for a
ten year old boy.
Dr Cosgrove again telephoned me to see how [D] was and I told him
the Risperidone appeared to be helping with [D] eating and sleeping.
C
He had become lethargic but I thought that was how he should be
on the medication.
I could not afford to pay Dr Cosgrove for the telephone
consultations and I never heard from him again. I was also unable to
afford the cost of any further private prescriptions and I went to
consult my general practitioner.”
D
Just looking at that, and if we take you back, please to D1, the second letter in time dated
27 May 1996?
A Okay.
Q
If you look at the letter for 27 May:
E
“I am writing to advise you that [D] started his medication on Friday
24th May. So far so good, the only side effect I can see at the
moment is his appetite, which you told us about.
The other thing I need to mention is that my own doctor will not
prescribe Ritalin for [D]. What they have said to me is that I have
gone outwith the NHS and gone against Yorkhill Hospital, Glasgow
F
and I will have to get my prescriptions from you privately. I would
be most grateful if you could advise me what to do as I do not want
[D] to run out.”
Then the next letter, September 23:
G
“I am writing to you to apologise for the delay in sending your fee.
I have recently moved house, and changed my doctor so things are a
bit hectic at the moment. [D] is doing very well with both drugs,
Ritalin and Risperdal. My new doctor who’s name and address is
Dr Spence”
- I have read this before.
H
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A
“I am not on the telephone yet but hope to be in the near future.
I wish again to thank you so very much for your help. If it had not
been for you I think [D] would probably be in care. I do not want to
break contact with you and I will send your money as soon as
possible.”
That account, do you agree, is wholly different from the account in the statement you say
B
you signed on 14 July 2003?
A
Describe in which way you mean.
Q
The person who was the mother who wrote the letters, I suggest, in 1996 was
quite happy with the treatment that her son was receiving and felt that but for it her child
would be in care by now and that the only concern was the question of appetite. That is
totally different, I suggest, from the account that you have given in this document of
C
2003?
A
Do you want me to answer?
Q
No mention of sleeping problems, weight loss problems, no mention of lethargy in
your correspondence---
A
Excuse me, which one are you talking about? Letter D1?
D
Q D8?
A
Which one are you referring to at the moment?
A
In D8 you talk about – I will just take you to the paragraph. 14:
“Dr Cosgrove to telephone two weeks after the initial consultation.
I informed him that I was still having problems with [D]’s behaviour
and he decided to increase the dose of Ritalin. A further two weeks
E
passed and again Dr Cosgrove contacted me by telephone. By this
time I was very worried about [D] as he was not eating any food nor
was he sleeping and he has lost a lot of weight.
I told Dr Cosgrove of my fears and felt that the medication was not
working as well as I had hoped. At this point Dr Cosgrove told me
that he was going to prescribe another drug which to the best of my
F
recollection he did not name but did state that it would help [D] to
sleep and eat and would counterbalance the Ritalin and resolve any
behaviour problems.”
Then 17:
G
“Dr Cosgrove sent me a private prescription for Risperidone.”
18:
“Dr Cosgrove again telephoned me to see how [D] was and I told
him the Risperidone appeared to be helping with [D] eating and
sleeping. He had become lethargic but I thought that was how he
H
should be on the medication.”
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020 8614 5799
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A
In the mother’s correspondence in 1996 there is no mention of those problems, the
lethargy, the weight loss or the like, was there?
A
In D1, no. There is a mention of [D] not being able to eat and not being able to
sleep and my concerns about that, and that is why the second line drug was introduced, to
combat the side effects of Ritalin.
B
Q
If you could look at paragraph 26 of D8, the statement:
“In September 1996 I received some correspondence from a Doctor
Bramble and Dr Cosgrove in relation to a Risperidone survey. I am
not sure how I came to receive this correspondence as I had moved
from the address I was at when Dr Cosgrove was prescribing to [D]
and I did not give Dr Cosgrove a forwarding address.”
C
Look, please, at D1?
A
D1 was written when I received the Risperidone survey through the post. This
letter was written in response to the survey that I had received from Dr Cosgrove and
Dr Bramble.
Q
Just pause there. In your statement you say:
D
“I am not sure how I came to receive this correspondence [in
September 1996] as I had moved from the address I was at when
Dr Cosgrove was prescribing to [D] and I did not give Dr Cosgrove
a forwarding address.”
A
In the letter of 23 September 1996 the mother of D provided a forwarding
E
address?
A
That is correct, but the survey came through to me at 90 Finlay Drive before I had
written this letter. That is the reason why I do not understand I received the letter,
because I had moved from Bemerside Avenue in Mansewood to 90 Finlay Drive in
Dennistoun. This letter came in the post addressed to me. Whether it was forwarded on
from my previous address I am not sure, but at that point Dr Cosgrove did not have my
new address when this letter was written in response to the survey I had received this
F
letter from Dr Cosgrove and Dr Bramble.
Q
Dr Cosgrove had the address of 14 Bemerside Avenue back in May?
A
That is correct, back in Mansewood.
Q
And then in September you wrote from 90 Finlay Drive?
G
A Correct.
Q
Stating your old address---
THE CHAIRMAN: I think we are in danger of breaching confidentiality by this use of
addresses.
H
MR MORRIS: Yes, you are quite right.
(To the witness) In the letter of 23 September, if
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A
I can call them address 1, address 2 and address 3, perhaps that would be easier, in
chronological order. In May and April you wrote from address 1?
A Yes.
Q
In September you wrote from address 2?
A Correct.
B
Q
Setting out there your address 1 and the new address 3 that you were at that time
at?
A Correct.
Q
So how can you say in your statement that you had not given Dr Cosgrove a
forwarding address?
A
I did not give Dr Cosgrove a forwarding address when I had moved from [address
C
1], that is when I initially contacted Dr Cosgrove, when I moved from that one address to
my new address and I had written this letter, I had not informed Dr Cosgrove at that point
that I had moved. It was only when I received the survey from himself and Dr Bramble, a
questionnaire-type survey, for myself to fill in to check [D]’s progress on the Risperidone
is when I wrote this letter back to confirm my new address, apologies for not informing
him beforehand and not paying his fees.
D
Q
Mrs D, what I am suggesting to you is that because what I suggest are the
inaccuracies in the statement D8 (14 July), the information provided from you in D7 to
Brian Daniels about the place of consultation, the formulation of a complaint by you
which is typed with your name spelt incorrectly (D6), that all of those are the actions of
someone who was not the person who took D – not the mother of D – to see Dr Cosgrove
in 1996?
A
Would you like me to respond to that?
E
Q Please?
A
I am telling you I am the mother of [D]. I went to see Dr Cosgrove with [D]---
THE CHAIRMAN: I do not think that was actually the question that Mr Morris put, was
it?
A
What was the question then? That I am the wrong person?
F
MR MORRIS: I am suggesting that the person – and you say it is yourself – who wrote
and were responsible for the statement of 14 July 2003, the information given to Brian
Daniels and repeated in his letter of 31 October 2000 (D7), the letter formulated at D6
and dated 18 August 2000, could not possible have been the person who took D to see
Dr Cosgrove in 1996?
G
A
No, that was wrong. I am the person – the person who has written the letters, I am
the person who took D to see Dr Cosgrove and I am the mother of that person.
MR MORRIS: Thank you.
MR PEARCE: Sir, for the purpose of my re-examination I am going to invite you for the
first part of that re-examination to sit in camera. May I explain why? The application
H
itself can probably be made openly with members of the public present. Sir, I have
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A
before me a large bundle of medical documents which are or at the very least purport to
be the medical records of the patient D. Those records contain a large amount of
information which the true mother of D, whether it is this lady or somebody else, will
know, and in my submission it is appropriate that you hear questioning, non-leading
questioning I hasten to add, about D’s medical background in order for you to establish, if
necessary by comparison with those medical records, whether indeed in making your
decision on the issues that arise, you believe the person before you to be the mother of D.
B
Sir, those medical records, like anybody’s medical records, contain a large number of
private and confidential matters. In this particular case they, if I may say so, contain far
more than the average person’s details, very private and personal details, details which if
I may say so again without condescending to any of the particularity at all, relate not only
to D but also to potentially the mother of D and also potentially to other people. It would
C
be quite inappropriate of me, and I think impossible of me to do the questioning before
the Committee openly with members of the press present, even with the assistance, if
I may put it that way, of the guidance you have already given from the viewpoint of the
Committee, since I am acutely aware of the fact that whatever you have to say about
confidentiality there is nothing binding on those members of the press here present, and
I take the view frankly sir that I couldn’t take this line of questioning at all unless you
were in camera because it would be quite improper for me to start airing personal and
D
private matters in this kind of respect. I invite you to go into camera for that part and that
part only of my re-examination.
THE CHAIRMAN: Mr Morris?
MR MORRIS: I would have no objection to that course.
E
THE CHAIRMAN: The legal assessor wants to speak.
THE LEGAL ASSESSOR: I have nothing to say about the actual application itself. I just
wanted to come back to Mr Morris’s cross-examination. I just ask, is it part of your case
that this lady who is in court today was not the lady who went to see Dr Cosgrove?
THE CHAIRMAN: I thought we were going to get clarification of that later on when you
F
made your formal submission.
THE LEGAL ASSESSOR: The reason I raise it is because if it is part of your case that
this lady did not go and visit Dr Cosgrove, this lady who is in court now, I think that
should be put to her.
G
MR MORRIS: Let me take instructions.
(Takes instructions from Dr Cosgrove) Sir I
haven’t gone that far and I don’t go that far. I hoped I had made it clear in my
questioning to her, and I think it is right I make it at this stage so my learned friend can
deal with it rather than in submission at a later stage, what I am saying and suggesting is
that the person – I accept it is the mother of D who took her child to see Dr Cosgrove in
1996 – is not the same person who has written but not signed a letter of complaint of the
18th of August 2000, who has signed a consent to disclosure of medical records on the
H
18th of August 2000, who made and signed the witness statement which you have before
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A
you, that person is different from the mother of D. All I am saying and putting to this
witness is either she is the mother of D and she is not correct when she tells you that she
is also the person who has formulated the complaints and the documentation of 2000 and
onwards, or she is the person who has formulated the complaints and material from 2000
onwards, and if she is then she is not the mother. I hope I have made the position clear.
Those are the two options.
B
MR PEARCE: By way of clarification, may I be clear I think it follows from what my
learned friend says that his second case includes the fact both that the person present in
court is not the mother of D, and also the person present in court did not attend the
consultation with Dr Cosgrove in 1996. That is how I understand it to be, the obverse of
the first.
MR MORRIS: If the witness is the compiler of the complaints of 2000 onwards, she is
C
not the mother of D who took the child to see Dr Cosgrove in 1996.
THE LEGAL ASSESSOR: This witness has said that she took her child to see Dr
Cosgrove in Bristol. Is that evidence challenged or not?
MR MORRIS: I am not sure I can take it any further than what I said. If she is saying
that she is the mother and that she took her child to see Dr Cosgrove in 1996, and she is
D
also the person who has formulated the complaint, who has made a witness statement,
who has provided information to Brian Daniels in 2000 and onwards, then I challenge
that. I cannot challenge baldly and say you are not the mother.
THE LEGAL ASSESSOR: I have got a record of the witness saying ‘I am the mother of
D.’
E
MR MORRIS: If that is what I put I withdraw that.
THE CHAIRMAN: As I understand it what you are really saying is that someone took
Master D to see Dr Cosgrove around 1996 and wrote some letters at that time. Someone
wrote some letters from 2000 onwards and it is your assertion that there are two people
involved in this, two different people.
F
MR MORRIS: Correct.
THE LEGAL ASSESSOR: About what you say about your cross-examination I think that
the evidence of this witness is that she is both the mother of D and she went to Bristol.
MR MORRIS: That is abundantly clear.
G
THE LEGAL ASSESSOR: The record will show your challenges that have been made.
We will take it from there.
MR PEARCE: Sir, may I raise one matter. Inviting you to sit in camera I didn’t refer
you to the relevant rules. You might I think properly be referred to the rules simply so
that you understand your powers, not because I need to make any specific submission in
H
respect to those. Rule 48 I think is the relevant paragraph sir.
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A
“(1) Subject to the provisions of rule 50(5), and to the following
paragraphs of this rule, all proceedings before the Professional
Conduct Committee shall take place in the presence of all parties
thereto who appear therein and shall be held in public.
(2) (a) If any party to any proceedings or any witness therein
B
makes an application to the Committee for the public to be
excluded from any proceedings or part thereof, then if it appears
to the Committee that any person would suffer undue prejudice
from a public hearing or that for any other reason the
circumstances and nature of the case make a public hearing
unnecessary or undesirable, the Committee may direct that the
public shall be so excluded.”
C
I would invite you to exercise the powers for the reasons I have said. I think if I may say
so sir, and I am sure you considered this already, but just so that my position is clear on
this point, anything which infringes the prima facie right of the public to be present is a
matter that would be considered carefully, notwithstanding the fact that there may be no
objection to my application, and I am sure a matter you would consider in private before
coming to any conclusion, even if it was a matter that was briefly dealt with.
D
THE CHAIRMAN: I had a signal from members of the panel that they would not be
raising any objection to being in private session for the next part of the hearing, and I
haven’t heard any objection from Mr Morris.
MR MORRIS: No.
E
THE CHAIRMAN: So I don’t think we need to retire to consider it. We will hear the
next part in private, so the public will withdraw.
(The proceedings continued in camera – see separate transcript)
PARTIES HAVING BEEN RE-ADMITTED
F
MRS D
Re-examined by MR PEARCE (Continued)
THE CHAIRMAN: Perhaps before you begin, I should say that during the In Camera
session we tended to use the patient’s Christian name; we should be careful and go back
G
to Mr D.
MR PEARCE:
(To the witness) Could I ask you to look at a document please, Mrs D?
(Same handed)
THE CHAIRMAN: This will be C1.
H
MR PEARCE: (
To the witness) Could I ask you to just glance briefly over that
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A
document? Have you seen this document before?
A Yes.
Q
We can read what it says, “Re: Risperidone Survey”, and it makes reference to
Dr Cosgrove, it says:
“Dr P V F Cosgrove of The Bristol Priority Clinic has been treating your child
B
with the drug Risperidone and now has over two hundred other patients on this
drug”.
It goes on to deal with the fact that Dr Cosgrove and a Dr Bramble of Nottingham
University Medical School feel that it is appropriate to investigate how effective
Risperidone is; we can see the content as the page goes on. Mrs D, in what circumstances
did you see this document, how did you come to see it?
C
A
It was sent through the post to me.
Q
And, as I understand it, you made reference earlier to a document that, for want of
a better word, triggered your correspondence with Dr Cosgrove in September of 1996?
A Yes.
Q Is
that
this document?
D
A
This is the document that come through, yes.
Q
I want to ask you if I may about some more correspondence and in asking you
about these various documents, Mrs D, I am concerned at the moment with the question
of the writing on the document and whether or not it is your writing?
A Right.
E
Q
I am afraid to say there is a whole string of documents for you to have a look
through, but we will go through them page by page if we may?
A Okay.
Q
The first bundle we will hand out, this will be C2, sir. (
Same handed) Mrs D, the
first document here is dated the 23rd September 1996, it is an address that we have seen
before, a hand-written letter, “Dear Doctor Barton. I am writing to inform you that I have
F
moved from …” and an address is given. The document runs on and on the second page
of C2, “Kind regards”, and there is there a name written or signed; who wrote that letter?
A Myself.
Q
And who wrote the name that appears at the bottom of the letter on the second
page?
G
A Myself.
Q
And who is Doctor Barton please?
A
John Barton is a consultant child psychiatrist at Yorkhill Hospital.
Q
Can I ask you to look at the next page, you will see it has got a number at the
bottom, actually 152, rather surprisingly perhaps, but it has been paginated by somebody
H
else in other circumstances. There is a document here, we see there is a name written,
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A
“Date checklist completed: 11th March 1996; Start or end of assessment: Start; Date of
birth of child:” a date is given, “Name of person completing checklist:” and a name is
given and in brackets ‘mother’. Who wrote the things that are hand-written on this
document, Mrs D?
A
I signed the bottom of it, it is my signature.
Q
Did you write the other entries?
B
A
No, I did not.
Q
The date of birth on that page, is that the correct date of birth of your son?
A It
is.
Q
May I ask you to look at the next page of C2, numbered at the bottom 151 headed:
C
“Royal Hospital for Sick Children, Yorkhill, Glasgow. Department
of Child and Family Psychiatry. Permission Slip. I hereby give
permission for my child …” – the name is given – “to take part in
any outings which may take place from the in-patient or day units
during the hours of attendance. Date: 11th March. Signed”.
Now, first of all, who wrote the child’s name there, was it you or was it somebody else?
D
A
It was not me.
Q
And the date?
A
That is my signature and the date.
Q
May I ask you to look at the next document in C2 with number 27 at the bottom,
dated Thursday the 4th April 1996, it has a name in the top right-hand corner, it has an
E
address we have seen before:
“Dear Mr. Fraser.
I am writing to you to request a full report regarding my son” –
name given and there is a little bit more information given –
“Regards”,
F
and a name at the end. Who wrote that letter?
A I
did.
Q
All of it?
A
All of it.
G
Q
Including the name or the signature at the bottom?
A Yes.
Q
Who is Mr Fraser?
A Cannot
remember.
H
Q
And the next document, if I can ask you to look at that, number 10 at the bottom.
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A
It is dated the 23rd September 1996, it has got an address in the top right-hand corner, the
address we have seen before:
“Dear Dr Robinson:
I am writing to you regarding an appointment I missed regarding my
son D”.
B
It makes reference to travelling to Bristol to see Dr Cosgrove and D was diagnosed as
having ADHD and put on Ritalin. A little more information there and then at the bottom
it says, “Yours”, and a name appears; who wrote that letter?
A I
did.
Q
Can I ask you to look on the very top of the document, it says ‘25/9/96 clinic’; did
C
you write that?
A
No, I did not.
Q
Apart from that though, who wrote the rest of it do you say?
A I
did.
Q
And who wrote the name at the bottom?
D
A I
did.
Q
May I ask you to look at the next page.
(To the Committee) Sir, there is no
significance in the way this is bundled together I hasten to add, it just happens to be
bundled in this way.
(To the witness) This is a consent form to the release of medical
hospital records:
E
“To whom it may concern. I” – and a name is given – “of” – and an
address is given – “do hereby authorise that the medical and hospital
records of my son” – and a name is given – “be made available as
required to the GMC and to their solicitors” et cetera
And at the bottom it is signed and dated. Now, first of all, the signature at the bottom,
who wrote that?
F
A
It is my signature.
Q
The date, who wrote that?
A
I wrote the date.
Q
Now in respect of both the name that is or purports to be your name and the name
G
of your soon, what has been typed has been crossed out and there is a hand-written
alternative spelling; who wrote that?
A
That was written by John Hodgkinson, the solicitor that came to interview me.
Q
And next to it on each occasion one can see two initials; who wrote those initials?
A
I initialled them.
H
Q
The next bundle of documents is one that I know those instructing me have copies
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A
of here. Could I ask you to look at this and we will mark this document C3. (
Same
handed)
(To the Committee) I think for the sake of clarity I should say that in my copy,
and I believe every other copy, the last page is entirely blank and there is no significance
in that, it has simply been photocopied with one extra sheet in and then stapled together
in the same way.
(To the witness) Mrs D, you were asked about bringing documents to the Committee
hearing today and you indicated that you had had some contact with the solicitors, but
B
that you were already travelling and that you had not therefore been able to bring certain
documents?
A
Correct, I could not bring documents from 1996.
Q
But have you brought with you today to this Committee hearing some documents
with your name written on them?
A
Yes, I have.
C
Q
And are these photocopies of those documents?
A
Yes, they are.
Q
If we can just look through them again just to identify them; the originals are
available, I know. The first page of C3, whatever it is does not matter, but we see there,
there is a signature written and the date the 18th September 2003; who wrote that?
D
A
I wrote that.
Q
On the next page there is a document that I think relates to someone’s report card
and attendance print out. It is signed, there is a hand-written name of the pupil who is a
tutor group member. First of all, who signed that?
A I
did.
E
Q
Who wrote the name of the pupil?
A I
did.
Q
And the tutor group?
A
That is already there.
Q
The third page, which is not terribly easy to read, I think it is one of those copy
F
typed documents that does not photocopy very well, but we do have the original of this
carbon copy of the document here, it is some kind of delivery receipt, I think, for a
tumble drier?
A
That is correct.
Q
And just over two thirds of the way down at two boxes it says ‘customer
G
signature’ one above the other and we can just about see a signature there; who wrote that
signature?
A I
did.
Q
May I then ask you to look at one final bundle of documents and for this, I think,
I would be obliged to those who act for Dr Cosgrove if they could assist us with save
photocopying, because I believe they have copies of this; I asked for it to be copied and
H
I believe it had already been photocopied, and that is documents relating to the Criminal
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A
Injuries Compensation Authority. (
Same handed)
THE CHAIRMAN: This will be C4.
MR PEARCE: (
To the witness) And the details of this document do not matter again,
Mrs D, I am concerned only with some hand-writing on certain pages of them. Page 18,
which is a consent:
B
“I authorise and request my GP to supply any information
reasonably requested by CICA in connection with this application”.
Signature and a date. Who wrote the signature there?
A I
did.
C
Q
And who wrote the date?
A I
did.
Q
And then if you go to the very back of this bundle, which is clearly something to
do with the claim to an authority arising out of an injury. Under 13.9, “Signature of
applicant”, who wrote the name that appears there?
A I
did.
D
Q
And who wrote the date that appears next to that name?
A I
did.
Q
And under 13.10, “Signature of person applying on behalf of injured party”, who
wrote that?
A I
did.
E
Q
And the date, who wrote that?
A I
did.
Q
May I, I hope now fairly briefly, just ask you about one or two other matters,
Mrs D? Can I refer you to D1, I know you have an abundance of paper in front of you;
I can tell you it is hand-written letters, the very first hand-written letters that were
F
referred to you. We know these are in reverse order in terms of time, so can I ask you to
go back to the earlier letters in May of 1996. The address that appears in the top right
hand corner, which I think we are calling address one, the details do not matter, were you
living at that address at that time in 1996?
A
Yes, I was.
G
Q
Would you then go on to the first page of D1 where an address appears. I thought
there might have been some slight confusion about this, because I thought I understood
Mr. Hughes to call that address three, although I think it is the second address on the file?
THE CHAIRMAN: I think it was Mr Morris that said there were three addresses.
MR PEARCE: In any event, be that as it may, I do not think it requires any formal
H
direction.
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020 8614 5799
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A
(To the witness) The address we see on the top of D1, top right hand corner, again I am
not concerned with the details of the address; was that your address on the 23 September
1996?
A
Yes, it was.
Q
Reference is made to Dr Spence in that letter, “My new doctor’s name and
address”; was Dr Spence your doctor in September 1996?
B
A Yes.
Q
Could I ask you please to go to D4, it is a perfectly reasonable document to go for
to ask you about this, one of the typed letters? We see a name and address in the top right
hand corner of D4, it is a different address from those two I have just referred to; in
December 2001 was that your address?
A Yes.
C
Q
May I turn to another matter, please, Mrs D, and that is the attendance that you
say took place at Dr Cosgrove’s clinic. Can I first of all be clear about where to the best
of your knowledge that clinic was, the clinic at which you saw Dr Cosgrove?
A
Well I travelled down to the Bristol Priority Clinic.
Q
And where do you understand that to have been?
D
A
I was assuming it was in Bristol.
Q
You said that you stayed in a bed and breakfast?
A That’s
correct.
Q
Do you recall where the bed and breakfast was?
A
No, but I know it was about five minutes away from the Bristol Priority Clinic.
E
Q
And you have indicated a length of time, 15/20, I think at one stage you said 15,
even 25 minutes; apart from that period of time, have you on any occasion met Dr
Cosgrove?
A No.
MR PEARCE: (
To the Committee) Can you just give me a moment please, sir? (
Pause)
F
I am obliged, sir. I have no further questions.
Further cross-examined by MR MORRIS
Q
The last document in D2, Mrs D, is the consent document, the last page of D2
dated 12 June 2003, giving permission for the General Medical Council and their
G
solicitors to have access to your son’s medical records. Have you seen your son’s
medical records?
A
No, I have not.
Q
There would have been nothing to stop you seeing them if you wished to, do you
accept that?
A I
would.
H
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020 8614 5799
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A
MR MORRIS: Thank you very much.
THE CHAIRMAN: Are there any more questions at this stage from Members of the
Panel?
(No response) There being no questions, we will break for lunch now. There is
the possibility that Mr Morris might have some further questions for you after the lunch
break so that we will keep you under oath at the present time and I repeat what I said
earlier, you must not discuss your evidence with anyone during the lunch break.
B
MR PEARCE: Sir, may we take stock as to timescales, since at the moment I have an
expert witness sitting in the building waiting to give evidence. It seems to me that, if my
understanding of my learned friend’s position is correct, we may be hearing some expert
evidence on his behalf for the purpose of his application this afternoon; that thereafter he
and I will have to make our submissions to you and you will have to retire to consider
those submissions – which, no doubt, will involve the consideration of certain
C
propositions of law as well as the factual evidence that you have heard.
If you rule in favour of staying these proceedings in their entirety than clearly I will be
calling no further evidence and therefore there will be no benefit to the Professor staying.
If, on the other hand, you were to rule in favour of some or all of the charges continuing,
the next stage in the proceedings would be for me to open the case and thereafter, subject
to which charges proceed, I would propose to recall Mrs D to give her evidence on the
D
substantive issues – and she has travelled here from a distance, always with the intention
that her evidence would be given today and only today.
It seems to me, unless I am misunderstanding the processes that are now going to take
place, there seems to be no realistic prospect of Professor Taylor giving evidence today.
In those circumstances, I have already made the provisional arrangement that he,
assuming his evidence is needed, gives evidence by way of the video link equipment on
E
Monday afternoon and if my understanding of the timetable is correct I would propose
that I release him now and proceed on the basis that it is then that he will give evidence.
THE CHAIRMAN: I am not trying to say what Mr Morris’s case will be but I would
assume that he would be making quite lengthy submissions to strike out all or part of the
charges and that you would be making a counter submission. If we continue with any of
the charges or all of the charges, I think it would be highly unlikely that we would be
F
starting to take evidence today. As I understand it, you will be calling an expert witness
and that could take some time. You will have some idea of the time that your
submissions would require.
So I think it is safe enough to let Professor Taylor stand down for today. If we were to
proceed with some or all of the charges, the first stage would be for Mr Morris to respond
G
to the charges as to whether any or all of them are admitted and then you would present
your case. I think I am safe enough in saying that Professor Taylor can be stood down.
MR MORRIS: I respectfully agree with that.
THE CHAIRMAN: At this stage we will break and we will return at 2 p.m.
H
(The Committee adjourned for lunch)
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020 8614 5799
D2/37
A
Sir, I have no further questions to put to Mrs D.
THE CHAIRMAN: I assume you have no further questions either, Mr Pearce.
MR PEARCE: No, sir.
B
THE CHAIRMAN: You are now excused, Mrs D. If the case continues then I assume
you will be giving evidence at a later stage. At this point I would ask you, Mrs D, to
leave the room.
(The witness withdrew)
MR MORRIS: I call Mrs Marsh.
C
FIONA ELIZABETH MARSH, Sworn
Examined by MR MORRIS
Q
Mrs Marsh, are your full names Fiona Marsh?
A
Fiona Elizabeth Marsh.
D
Q
And could you give the Committee your professional address, please?
A
The address is Lapwater Hall, Middle Road, Ingrave, Brentwood, Essex.
Q
What is your occupation and what are your qualifications?
A
I am a question document examiner, otherwise known as a forensic document
examiner. I have a Bachelor of Science degree, a Master of Science degree, and I was
E
trained in the scientific examination of documents and handwriting at the Metropolitan
Police Forensic Science Laboratory.
Q
How long did you work there for?
A
I worked there for, I think, eight years.
Q
I think you left the Forensic Science Laboratory in 1988. Since that time, how
F
have you worked?
A
I have worked as an independent document examiner.
Q
Can you tell us the sort of work you have done and for whom in terms of your
independent career?
A
My clients include: I work for prosecuting bodies, including the Metropolitan
G
Police, the City of London Police, various police forces, Trading Standards, Ministry of
Defence, and I have worked for prosecuting bodies abroad, for the Gibraltar Police,
people in Australia, Philippines and various other countries. I do criminal defence work,
where most of my clients are solicitors but I do some work for private individuals, and
I do civil work which includes work for banks, insurance companies, corporate
businesses, whoever.
H
Q
I think on Monday of this week, 19 January of this year, it is right that you were
TranscribeUK
020 8614 5799
D2/38
A
shown a number of documents and asked to comment upon them?
A
Yes, I was.
Q
I think following your sight of those documents on Monday the 19th you have
compiled a report as to what you have seen and your conclusions about what you have
seen?
A
Yes, I did.
B
Q
You have been here today listening to the evidence, during the course of which a
number of other documents have become available within the hearing, is that right?
A
That is correct.
Q
Those are identified in two groups, but had you seen those other documents before
today?
C
A
No, I had not.
Q
Have you had an opportunity to look at them over the adjournment?
A
I have made a cursory examination of a number of additional documents.
Q
I want first then to identify those documents which you were able to see on
Monday in more leisured circumstances and on which you have prepared a report. Could
D
you have, please, D1, D2 and D4?
A
These were the documents I examined on Monday.
Q
Can I just go through these to make sure that you have identified the ones you saw
on Monday? First of all, looking at D1, did you see the three handwritten letters dated
26 April, 27 May and 23 September 1996?
A
Yes, I did.
E
Q
Turning to D2, did you see the letter dated 18 August 2000, which is typed and
signed by Mrs D?
A
Yes, I did.
Q
With the addition of a “p”?
A
That is correct.
F
Q
Turning to D4, did you see the letters dated 11 December 2001 and 21 June 2001?
A
Yes, I did.
Q
Together with the copy driving licence attached to the letter of 21 June 2001?
A
Yes, I did.
G
Q
I want you to begin with your views about that documentation first of all and then
I will turn to the additional documentation that you have seen this morning for your views
on that. First of all, was all the documentation that you saw on Monday original?
A
No, two of them were copy documents.
Q
Are you able to identify which were the copy documents that you saw?
H
A
May I refer to my notes?
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020 8614 5799
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A
Q
Just tell us about those notes, please. When did you make your notes?
A
They were contemporaneous with my examination.
MR MORRIS:
(To the Committee) I wonder if the witness may be allowed to refresh her
memory from her notes?
B
THE CHAIRMAN: Yes.
MR MORRIS: I am grateful.
THE WITNESS: The typed letter dated 18 August 2000 was a copy, as was the driving
licence.
C
MR MORRIS: So that is D2 and the driving licence, D4. I think what is common to all
the documents is that there are signatures on these documents and it was those signatures
that you were asked to make a comparison of, is that correct?
A
That is correct, yes.
Q
Before you begin to give evidence about those signatures and your comparison of
those signatures, I just want you to help the Committee as to any difficulty you might
D
have in discussing those signatures if you are asked to maintain the anonymity of the
signatory. Is this going to cause you problems?
A
I have never had to give evidence on handwriting before anonymously. I can give
evidence, I hope, in general terms but if you want any sort of detail of the letters then I
cannot keep it anonymous.
MR PEARCE: If I can just come in there, I make it clear now that if this evidence is
E
going in the direction I anticipate it is, then I certainly by way of cross-examination think
I clearly have to ask about details, individual letters and names – matters which would
clearly render the idea of anonymity not workable.
THE CHAIRMAN: Basically what you are suggesting to us is we should hear this
evidence in camera.
F
MR MORRIS: I feel otherwise the anonymity is inevitably going to be breached.
THE CHAIRMAN: We agree to that.
Sadly, I have to ask the public to leave once again.
G
(The proceedings continued in camera – see separate transcript)
H
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020 8614 5799
D2/40
GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Friday, 23 January 2004
Held at:
Barnett House
53 Fountain Street
Manchester M2 2AN
Case of:
PATRICK VERNON FINN COSGROVE MB BS 1968 Lond
(Day Three)
Committee Members:
Professor N Mackay (Chairman)
Dr A Hamilton
Mr J Matharu
Dr B Stanley
Mr R Briden (Legal Assessor)
--------------------------------------
MR D MORRIS, of Counsel, instructed by Messrs RadcliffesLeBrasseur, appeared on
behalf of Dr Cosgrove, who was present.
MR R PEARCE, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on
behalf of the Council.
--------------------------------------
(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
--------------------------------------
INDEX
Page
PRELIMINARY
MATTERS
1
APPLICATION
by
MR
MORRIS
3
APPLICATION
by
MR
PEARCE
4
____________________
A
THE CHAIRMAN: Good morning. Mr Morris?
MR MORRIS: Sir, I think when we parted on Wednesday Mrs Marsh was in the witness
box. She is sitting at the back of the Committee room. Before she moves from that
position, I would like to place before the Committee a further report that she has prepared
on the additional material that was submitted to her on Wednesday.
(Same handed)
B
THE CHAIRMAN: That will be D10. Did we have an earlier report?
MR MORRIS: No, sir, she gave that report orally and I do not propose to put the earlier
report in. It is a short report and I propose to read it to you and then to comment to you.
It is entitled “Further Report on Examination of Signatures in the Name of [Mrs D]”.
THE CHAIRMAN: There are members of the public here and we were hearing evidence
C
about handwriting in private.
MR MORRIS: I think for the purposes of this report I can deal with it in public session.
THE CHAIRMAN: Thank you. It is Mrs D we are referring to.
MR MORRIS: Mrs D.
D
“Further to my report dated 19th January 2004 on the 21st January
2004 I took possession of twelve additional documents each signed
in the name of ET and dated various dates between 1996 and 2004.
I have examined these additional signatures, fourteen in total as two
of the documents have been signed twice, in conjunction with the
E
seven signatures examined previously and referred to in my report
dated 19th January 2004.
The seven signatures examined previously could be divided into two
distinct groups with three signatures dated 1996 falling into one
group and four signatures dated between 1999 and 2001 forming a
second group.
F
The additional fourteen signatures examined extend the range of
variation considerably to that seen in the original seven signatures.”
Sir, I do not believe as part of the document that you have, you have an additional sheet
in the form of a template which you were given last time. I would ask that that be
G
circulated too.
(Same handed)
THE CHAIRMAN: D11.
MR MORRIS: Having a template may assist in understanding what she is saying here:
“The additional fourteen signatures examined extend the range of
H
variation considerably to that seen in the original seven signatures.
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020 8614 5799
D3/1
A
Additional variations include the use of upper case “H” in the
surname of some of the signatures e.g. on the handwritten letter
dated 23 September 96, on the Childhood Behaviour Checklist dated
11th March 1996 and on the consent form dated 17/2/02. This
feature is also found in the two signatures on the Delivery/Collection
Sheet dated 16 January 16/01/04. Furthermore, these two signatures,
dated 16/01/04 are considerably more abbreviated than all the other
B
signatures examined. More significantly some of the additional
signatures cannot be clearly placed into either of the two groups as
before, but show a considerable amount of overlap between the two
groups effectively bridging the gap.
It is apparent from the handwriting and the signatures on the
handwritten letters dated 1996 that [Mrs D]’s writing and signatures
C
are quite variable. Having examined additional signatures in the
name of [Mrs D] on a variety of documents and seeing the extended
range of variation it is probably that all the signatures were written
by the same person. However, as this signature is so variable and
simple in its method of construction it is relatively easy to copy.
Consequently if any of the signatures were to be considered in
isolation I cannot entirely exclude the possibility that it may be a
D
copy of [Mrs D]’s signature. However, I found no evidence that this
is the case.
I understand my duty to the court and I have complied with that
duty.
I believe the facts stated in this witness statement are true.”
E
She signed that on 22 January 2004.
Sir, the upshot of this further report and Mrs Marsh’s consideration of the additional
material is set out in her final substantive paragraph, where she says that on seeing this
extended range of variation it is probably that all the signatures were written by the same
person. That is her evidence and I do not seek to subvert that evidence and this is an
F
agreed document which is now before the Committee.
In the light of that, neither I nor Mr Pearce would seek to ask her further questions.
Obviously, she is still the Committee’s witness or before the Committee and if the
Committee wish to ask her further questions you must be entitled to do that. For my part,
I do not seek to ask further questions and I do not believe Mr Pearce does, but she is here
G
and available if questions are required.
MR PEARCE: So long as what is said and read out in that report and clearly signed by
Mrs Marsh is taken to be her as though she had given that evidence before you, then I do
not seek to cross-examine her.
THE CHAIRMAN: I assumed that was the position.
H
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020 8614 5799
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A
There are no further questions from the Panel, Mrs Marsh, so you can now stand down.
I am sorry you have been brought back for another day. Thank you very much for
coming down.
MR MORRIS: Sir, at this stage, all things being equal, I wish to commence or
recommence (I am not quite sure the best way of putting it) my submission on abuse of
process. I regret to say that not all other things are equal and I think the Committee may
B
be faced with a further hiatus. May I explain the position? In the material that was
disclosed by the Council on Monday, that is to say the internal memoranda which I
sought and which were procured by the Council and disclosed to the defence team on that
day, the prime purpose of which was to see whether there was any express matters that
relate to Mr Daniels and the Citizens Commission on Human Rights and whether there
was any involvement by them in the decision to refer the six original complaints to the
Registrar at the end of Septembers 2002.
C
It is also apparent from that material that the original six cases, or at least a majority of
them – maybe not all of them but the majority of them – were, in 2001, referred to the
Performance procedures of the General Medical Council. It is shown that a medical
screener took that decision at the beginning of 2001 and, indeed, that Dr Cosgrove was
notified of that decision in 2001 and probably in May 2001.
D
It is apparent also from this material that in February 2002 the matters were considered
again by another medical screener of the General Medical Council, who took a different
view, saying that they should be referred to the Preliminary Proceedings Committee and
therefore be sent down the Conduct route.
There is a suggestion in the various memoranda that went to and fro within the GMC
about this decision that that decision could be justified on the basis that further
E
information had come to light about Dr Cosgrove. However, on the face of the
documentation that I have all the complaints date from 1999, 2000 or earlier and it does
not appear to me that there was any further fresh information that would justify the
Council in deciding to take a wholly different approach to the treatment of this
information and complaints.
If that is right, it would, in my submission, amount to an unfair use of the investigate
F
powers of the General Medical Council and would amount to an abuse, which I would
seek to lay before you.
I have told Mr Pearce about this this morning and, quite understandably, he is not in a
position to deal with my concerns at this stage and he would like time to investigate
whether there is in fact additional material which would have justified a screener taking a
G
wholly different course from the one that was originally promulgated and communicated
to Dr Cosgrove.
If there is substantive additional material that was basis for that decision then I will not
proceed with any submission based on this point. If there is not, I would seek to proceed
with this submission and it would not be right or fair to Mr Pearce, I believe, for me to
begin my submission now and then for us to have a pause while investigations are made.
H
I think the view he would take is it would be best if that investigation were done now.
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020 8614 5799
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A
I am not sure how long that is going to take him. I am not sure whether he can assist in
that regard, but I am sorry to put this problem before the Committee, but I must do so.
MR PEARCE: We may perhaps be fortunate that we have a little leeway in time, sir. Of
course that is no ground on which not to proceed with expedition. As my learned friend
rightly says, he alerted me to these matters this morning, I have had no more than a
cursory view of the documents. His point raises a number of questions, not least the
B
fundamental factual question as to whether there was a decision to refer to performance
and then a change of that decision. Secondly, if there was a change of decision, on what
basis that change of decision was made. Thirdly, whether that change of decision was
based on fresh information or not could be justified. Fourthly, it seems to me, whether,
even if it could not be justified, it necessarily leads to any unfairness, sufficient to ground
an application for abuse.
C
Those are each matters that I would need to consider. The most fundamental of those, it
seems to me, is to seek what decisions were made and the basis upon which they were
made and that will undoubtedly take a little time. In the light of what my learned friend
has to say I cannot resist his right to raise the argument and in those circumstances it
seems to me I am bound to seek to respond to it by investigating the points he makes.
It seems to me the proper way for us to proceed at the moment is for you to allow me
D
some time, and I think something like an hour in the first place, in order to give me the
opportunity to see what the point is, speak to those, presumably in London, who may
know the answers, so in about an hour’s time I hope to be in a position to say to you this
is the way it appears to be going. I am not saying I will have the material, if material
there be that is relevant to it, but at least I hope to be in a position to say I know where I
am going. I can see a number of possible options, one of which is that I may seek to call
one or more witnesses. Those witness will no doubt not be available today. That may be
E
a possibility. I simply do not know what material there may be, which is why I seek the
indulgence of the time; to try to find out what there is and, I must say, to try to establish
whether there is any authority on this point. I am not as familiar with the screening
process as perhaps others who work in the GMC are, because I have no part in that
process. I only come in at this stage when it has already been done. I have to confess I
have not had a case where any part of the screening process has been challenged. It has
been suggested there is one authority, one decision in this area, I think a judicial review
F
decision, although I am not sure it has any relevance to this point. So there are legal
questions as well. But in the first place I am more concerned to try to understand the
factual position so I can lay at least in bare bones what we will be saying in the point
before you. We can then take a decision whether we proceed on this. It is fortunate that
we do have some more leeway of time than we might in another case.
G
THE CHAIRMAN: I think we are setting a record in GMC terms (Inaudible) but be that
as it may. We have got to do it appropriately. So shall we adjourn at the moment until
10.30 and then review the situation thereafter. Certainly if witnesses have to be called it
is Monday before that can be done, it may very well before Monday before you have your
case ready. Let us review the situation at 10.30.
(
The Committee rose for a short time)
H
TranscribeUK
020 8614 5799
D3/4
A
MR PEARCE: Sir, thank you for the time. I have had a very lengthy conversation with a
lawyer on the legal issues and, for my benefit, the procedures relating to screening. It is
not straight forward, it is not easy, like a lot of these matters. I have also had an
opportunity to look through all of the documents that we have here on the screening
process that took place here and the explanation for some of the issues that my learned
friend either has raised or, I anticipate, will rise is not apparent from those documents.
There are clearly some substantial unexplained areas.
B
Sir, what I will invite you to do is to retire now and return on Monday morning. Can I
tell you what I am going to do, if you acceded to my request, between now and Monday
morning; that is that I propose to spend the rest of the day, as long as it takes today in
seeking to identify what, if any, further documents there are and what, if any, further
knowledge there is to explain the screening process that has taken place here with a view
to putting any documents and, secondly, any information to my learned friend so that he
C
can consider whether he proceeds with the point and, if he does, so at the I can seek to
have a available before you on Monday morning all information, be it by way of witness
evidence, documents or whatever else, that I would seek to call to deal with this a point.
It seems to me, Sir, and particularly, but not only, I have say, having regard to the fact
I believe you are going to rise at 3 o'clock, that by the time I have the answers to these
inquiries it will be so late that we would frankly feel that it is Monday morning any way,
D
at best I will have identified a number of documents that will allow us to start oral
submissions and I anticipate that I will not have that before 2o'clock and whether you
really wish to start hearing an abuse argument application for an hour only. As I say,
given the circumstances in this case we do have a little indulgence of time, you may well
think the time is better spent that way. The aim is that for us to be ready to go first thing
Monday morning.
E
THE CHAIRMAN: I think that is perfectly reasonable. From what you say you will
require significant amount of time to acquire the information, you will have to share it
with Mr Morris. There is no guarantee that you would be ready by 2o'clock or 3 o'clock.
The issue of witnesses?
MR PEARCE: That depends on what the information is. That depends on who is
available to say what. There has been some changes of personnel. It may well be that
F
there is no greater information on some of these points than can be discerned from the
documents. It may be that there are people with knowledge of the decision making
process and can speak for it. I need to identify what is there is and who there is and I also
need to identify their availability. My intention would be to line up any evidence that I
seek to call before Monday morning so that we can produce it then and deal with them
from there.
G
THE CHAIRMAN: I do not think there is any option but to adjourn today and reconvene
on Monday. Slight worry about Monday and Tuesday, there are forecasts of snow but we
will take that as it comes. Let us not be pessimistic!
MR PEARCE: It will not snow in Manchester. If never does, it is too warm!
H
THE CHAIRMAN: Mr Morris?
TranscribeUK
020 8614 5799
D3/5
A
MR MORRIS: Sir, I have nothing to add. I am grateful for the steps my learned friend is
taking.
THE CHAIRMAN: So we will shall adjourn and hopefully reconvene on 9.30 Monday
morning.
B
(
The Committee adjourned for the day to reconvene at 9.30 Monday morning)
C
D
E
F
G
H
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020 8614 5799
D3/6
GENERAL MEDICAL COUNCIL
PROFESSIONAL CONDUCT COMMITTEE
On:
Monday, 26 January 2004
Held at:
Barnett House
53 Fountain Street
Manchester M2 2AN
Case of:
PATRICK VERNON FINN COSGROVE MB BS 1968 Lond
(Day Four)
Committee Members:
Professor N Mackay (Chairman)
Dr A Hamilton
Mr J Matharu
Dr B Stanley
Mr R Briden (Legal Assessor)
--------------------------------------
MR D MORRIS, of Counsel, instructed by Messrs RadcliffesLeBrasseur, appeared on
behalf of Dr Cosgrove, who was present.
MR R PEARCE, of Counsel, instructed by Messrs Field Fisher Waterhouse, appeared on
behalf of the Council.
--------------------------------------
(Transcript of the shorthand notes of TranscribeUK
Tel No: 0208 614 5799)
--------------------------------------
INDEX
Page
PRELIMINARY MATTERS 1
ABUSE OF PROCESS ARGUMENT BY MR MORRIS 1
REPLY BY MR PEARCE 36
RESPONSE
BY
MR
MORRIS
60
____________________
A
THE CHAIRMAN: Good morning. Mr Morris, or is it Mr Pearce?
MR PEARCE: I think it is me briefly first, sir. You will recall we had reached the
position on Friday where my learned friend had raised an argument which I sought your
indulgence to have sufficient time to consider in detail and to take instructions on. May I
say in the first place that I was not able to take those instructions until well into the
afternoon due to the non-availability of the appropriate person at the Council offices, and
B
so, if I may say so, the decision to put matters back to today was justified in the event.
Having had the opportunity to take those instructions and to consider the law in respect of
screening, it is not our intention to adduce evidence or documentation in respect of the
screening process that has taken place here. It is our submission, and no doubt this will
be developed in due course in the light of my learned friend’s abuse of process argument,
that it is not appropriate for the screening process to be examined or reviewed at this
C
stage.
A decision at the screening stage may very well be capable of challenge by way of
application for Judicial Review, an application that would be dealt with by the
Administrative Court in accordance with its procedures. This is not the appropriate
forum, we submit, to make any such challenge. You will no doubt have it firmly in your
minds that we are dealing with a screening decision taken very close to two years ago
D
now, since when these proceedings have followed their usual and, we say, proper process
through the Preliminary Proceedings Committee and into this Committee. We say to now
seek to challenge that decision, which is an administrative decision that comes before
everything that has happened since, is simply not a challenge that can properly be taken
before this Committee, but is one that, if it were ever to be challenged in any way, should
have been or should be challenged by way of Judicial Review application in the
Administrative Court.
E
My learned friend has indicated that he will develop his arguments in respect of abuse of
process in this regard and I will no doubt respond to those in due course. That, in the
short term, is to explain our position today and why we have reached that decision.
THE CHAIRMAN: Thank you very much. Mr Morris.
F
MR MORRIS: Sir, I am at long last going to make the substantive submission that I
wished to make early on last week in relation to, it now transpires, three separate matters.
The first submission is the one I outlined to you last week. If you have a copy of the
transcript for D1/9 F I outlined there in a nutshell what my submission was going to be,
namely, that under the aegis of the Church of Scientology’s organisation, the Citizens’
Commission on Human Rights, a complaint or information had been provided which is
G
fraudulent, inasmuch as it does not come from whom it purports to come from, namely
the mother of patient D.
I am now going to elaborate on that submission beyond saying that that head of charge
should not be allowed to proceed, because it amounts to an abuse of the process of your
Committee, and that it has a knock on effect in relation to the remaining charges. I am
also going to be submitting as a result of developments last week and the disclosure of
H
documentation by the Counsel that there has been effectively a breach of promise on the
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part of the Council, inasmuch as in relation to the charges that were notified or heads of
charge that were notified in the rule 6 letter of 1 October 2002, either the doctor had been
given an indication that no further action would be taken in relation to various
complaints, or that the action that would be taken was that those complaints or
information would be considered by the performance processes of the Council and not the
disciplinary conduct processes of the Council. The breach of that indication or promise
itself is a free standing abuse of the process of your Committee.
B
My third submission is that because the Council on Friday took the view that no further
disclosure of material was warranted, material that in my submission is relevant to the
conduct of the defence of Dr Cosgrove, that too stands on its own as an abuse of the
process of this Committee.
Can I return to the first submission in relation to head of charge 6 concerning patient D?
C
It would perhaps assist if at this stage I recapitulated on the law that I set out on the first
day of this inquiry. It is helpfully set out in the transcript at D1/19 through to D1/21
letter D. I do not propose to read through it again. That would be a complete waste of
your time. I am sure that you will have it fairly well in mind.
My submission in relation to the law on this matter is as set out at the bottom of D1/19 F.
D
“Power to stay proceedings for abuse of process has been said to include the
power to safeguard an accused person from oppression or prejudice…”
That is a reference to the case of
Connolly.
“…and has been described as a formidable safeguard developed by the common
law to protect persons from being prosecuted in circumstances where it can be
E
seriously unjust to do so. An abuse of process was defined in the case of
Ho Chi
Min as something so unfair and wrong that the Court should not allow a
prosecutor to proceed in what in all other respects is a regular proceeding.”
That was elaborated in the case of
Baring, which was a case under the Company
Directors’ Disqualification Act 1986 where the Court of Appeal said that a Court may
stay proceedings where to allow them to continue would bring the administration of
F
justice into disrepute among right thinking people, and that this would be the case if the
Court was allowing its process to be used as an instrument of oppression, injustice or
unfairness.
What I submit I did on that first day at D1/20 F to G is that if there is bad faith
demonstrated in relation to the bringing of charges other than head of charge 6, there is
G
ample authority for granting a stay properly on the grounds of abuse of process, and that
the lack of bad faith does not have to be found in the heart of the prosecuting body. It can
take effect even if the body itself is an unwitting victim of that bad faith. The body here
is, of course, the Council and it has been, in my submission, a victim of the bad faith of
either the Commission on its own or the Commission together with Mrs D. There is a
reference there to paragraph 4-63A of Archbold which I need not trouble the learned
Legal Assessor to look at now. The reference is set out in the transcript at letters F to G
H
on page 20.
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Can I turn to head of charge 6, patient D? The effective informant in that case was the
Commission, the Citizens Commission for Human Rights. My primary submissions was
as succinctly summarised by your Chairman on D2/29E, when he summarised the
position thus:
“What you are really saying is that someone took Master D to see Dr Cosgrove
B
around 1996 and wrote some letters at that time. Someone wrote some letters
from 2000 onwards and it is your assertion that there are two people involved in
this, two different people.”
I say that was a correct way of putting it, in my submission.
Notwithstanding the evidence of Mrs D and Mrs Marsh, the handwriting forensic expert,
C
I do not resile from that submission. You are not bound by the evidence of an expert. It
is opinion evidence and you, the Committee, have to make up your own minds. I am sure
Mrs Marsh would have been the first to accept that the forensic examination of
handwriting is not able to deliver certainty in its conclusions – not always – and that
additional material can lead to remarkably different conclusions.
You had a classic example of that when, on the first day she gave evidence about her
D
assessment of the handwriting signatures seen or made in 1996 and those made in 2000
and 2001, where she concluded on the basis of that material that there was no evidence to
connect the two and then, when she returned having seen additional material, she had
come to the conclusion that the range of variation was such that it was probable that all
the signatures were by the same person. You will have to make up your mind on that
evidence.
E
I wish to add an alternative submission in this light – I say “in this light” – in the light of
the evidence produced by Mrs Marsh. If you are not satisfied on the balance of
probabilities - which, in my submission, is the test you have to apply here because the
onus of proof I accept is on the Defendant in this submission – if you are not satisfied on
the balance of probabilities that there were two separate authors to those signatures and
that they were on balance probably the work of the same hand, then what I submit is that
that author, Mrs D, who gave evidence before you, has been manipulated such that in
F
reality the complaints embodied in first of all the letter of August 2000 – D6 - and the
subsequent witness statement of August 2003 – D8 – are not effectively her documents
and they are not made with her authority, notwithstanding her assertion in evidence
before you to the contrary.
That complaint as embodied in that letter and witness statement is not her complaint. It is
G
the Commission’s and, in that respect, is a fraudulent complaint.
I wish to give the Committee the reasoning behind that submission. The first is to do
with the letter of 18 August, D6, an unsigned letter written in the name of Mrs D, spelt
with a “p”, you will note.
You will recall Mrs D’s evidence about that, that that was a letter she had written in
H
manuscript in her own hand but that it had been typed by Brian Daniels of the
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Commission. My submission is that that letter was not drafted by Mrs D; it was drafted
by Brian Daniels of the Commission, for these reasons.
One – if he had been given a manuscript by Mrs D with her name spelt correctly, both at
the top and at the bottom where there is space for her signature and her names appears
and if her son’s name had been spelt correctly, then it is inconceivable that Mr Daniels in
typing that letter up would have mistakenly transcribed that name in three different
B
places. You will see it at the top right of page 1 of D6, you see it in the son’s name when
it was set out in full in the first paragraph of that letter and you see it at the end of that
letter.
That this is Mr Daniels’ work is further supported, in my submission, by the letter he
wrote to the Council on 28 June 2000. This is not a letter that you currently have and I
will hand it to you now.
C
THE CHAIRMAN: This will be D12. (
Produced)
MR MORRIS: This is the first letter that the Council received and it related to the survey
that Dr Cosgrove was carrying out together with Dr Bramble. The survey letter you will
see is C1 and it also refers to an article in the Daily Express where Dr Cosgrove is
quoted.
D
The significance of it, though, from the point of view I am taking at the moment, is that
you will see in this first letter Mr Daniels spells the patient’s mother’s name incorrectly
with the letter “p”. You will see that in the third paragraph on the first page and you will
see it at the bottom of the second page, at the very bottom where he notes that copy is
being sent to her, “c.c. Mrs D”.
E
Finally in relation to that letter D6, of course the obvious point that the letter is not signed
by the ostensible author.
THE CHAIRMAN: That is D6 you are talking about?
MR MORRIS: D6, I apologise. Yes, D6. In my submission it is inconceivable that such
an important document, written in manuscript by Mrs D as she says it was, typed by Mr
F
Daniels, sent back to her for perusal before sending – which is what her evidence was,
that she did, indeed, see the typed letter before it was sent out – should not be signed by
her.
You will recall she gave two explanations as to why it was not signed. Those
explanations were, in my submission, contradictory. First, she said she did not sign it
G
because it was typed and there was no need. One has to ask rhetorically if that is the
case, then why bother to sign the other letter of 18 August giving disclosure, or
authorising disclosure of her records? That is dated 18 August too and I think that is D2.
Her second explanation was that it was an oversight. Neither of those, in my submission,
are realistic and, indeed, they both contradict each other.
H
The reality is, I suggest, that Mr Daniels drafted that letter and sent it to the Council
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without it ever being shown to Mrs D, the mother of the patient.
The second reason why I say that this complaint, Head of Charge 6, is made without the
mother’s authority, is, I suggest, that he drafted and typed the consent letter of 18 August
– that is D2. That, indeed, is accepted by Mrs D. You will notice if you compare D2
with D6 - the letter I suggest that Mr Daniels drafted himself and sent without reference
to the patient – you will notice that the layout of the address of the sender at the top right,
B
the address to whom it is going to be sent, the layout of where the date is put and the
reference, are identical.
You will notice too in D2 that again we have the mis-spelt name and we also have the
assertion that Dr Cosgrove is practising at the Bristol Priority Clinic in Bath, Avon.
Clearly again, in my submission, a document written without reference to the mother of
the patient.
C
But this is a letter that Mrs D says was not drafted by Mr Daniels. It was written by
herself in manuscript and typed-up by a neighbour who lived about ten minutes away
from her. I suggest that is false. It is clearly written by the person who drafted the letter -
the other letter of 18 August, the letter of complaint - and I suggest that that was Mr
Daniels.
D
The third reason why I say this Head of Charge is not made with the mother's authority is
Mr Daniels' letter written to the GMC on 31 October 2000 which we see at D7. This is
giving information that was being sought by the Council. Mrs D said that this was
information she gave to Mr Daniels. He again spells her name incorrectly but, much
more significantly than that, he says in answer to the specific question as to where the
treatment took place that it was at the clinic in Bath. So, again I suggest that this was a
letter formulated by Mr Daniels without reference to the mother certainly in relation to
E
that specific critical issue.
Mrs D's explanation for that mistake, because it obviously was a mistake by her if she
was giving the information, was that, "My geography was not that good"; in other words
she mistook Bristol for Bath although she accepted that they are completely different
cities.
F
The real explanation I suggest behind this is that Mr Daniels got that information from
C1, the Risperidone Survey document sent out by Dr Cosgrove, where you see at the top
that the Doctor's address is given, or the Bristol Priority Clinic's address is given, and it is
the correspondence address in Bath. And Mr Daniels understandably, but wrongly,
assumed that that was where the treatment was taking place.
G
Mrs D, in my submission, when giving evidence before you, attempted to shoulder all the
responsibility for these errors which continued further into the Witness Statement itself;
for example, when it is stated in the Witness Statement that Dr Cosgrove saw them at a
hospital in Bristol when all agree now that it was not a hospital but that it was a clinic.
And, in shouldering that responsibility, she is trying to conceal the fact that those errors
were Mr Daniels' errors and that he and not she was the effective source of this
complaint.
H
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The fourth reason why I suggest that this complaint is made without her authority is that
Mr Daniels and his Commission have demonstrated over a period of time a motivation to
act on matters that concern them without appropriate authority, and this is what happened
here. This is the way, in my submission, that Scientologists operate.
You will recall the sequence of events here. That Mrs D, the mother, got in touch with
the organisation "Overload" in Edinburgh which was being run by Janice Hill.
B
"Overload" and Janice Hill, I suggest, are an organisation and a person who are
sympathetic to the aims of Scientology and sympathetic to the aims of the Commission
such that her organisation, of which I suggest she is the Founder, and her comments on
the Commission are to be found on the Commission's website. And if I could hand a
copy of that in, please.
THE CHAIRMAN: This will be D13.
C
(
Copies of the document were distributed)
MR MORRIS: I am afraid that the photocopying is not brilliant but, on the top left of the
photograph of the page on the Website, there is a logo. I have got the original
here and it
is the logo of the Citizens Commission on Human Rights, although that is not legible
there.
D
However, on its website we have the entry for:
"Janice Hill, Founder of ‘Overload Network’ in Scotland
2000
A network for parents which educates them on the
stigmatization of psychiatric diagnoses and drugs given
E
children",
where she is quoted as saying:
"'CCHR is a sane prescription for what ails our children,
our schools and our communities. It is a no-nonsense, say-
it-the-way-that-it-is. type of group. I hope that every parent
F
will continue to have access to CCHR's outstanding
up-to-date factual data. I also hope that every parent and
teacher takes CCHR's superb advice to heart. Do not allow
harmful psychiatric diagnoses, treatment and drugs to ruin
another child's life, another child's future".
G
Janice Hill here in this case was concerned about the drugs being prescribed by Dr
Cosgrove and was concerned enough to inform Mr Daniels, who in turn, Mrs D said,
contacted herself, and I do not ask you to turn it up but the reference to that in the
evidence is in Day 2 of the transcript, Page 11, Letter B.
His concern according to Mrs D - that is Mr Daniels' concern - which she asserted that
she also shared, was and I quote Mrs D's evidence, "To stop this man doing this any
H
more", and that is Day 2 at Page 12. "And that was going to be done ...", and again I
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quote from her evidence, "... by exposing Dr Cosgrove's treatment of over-medicating
young children ...", plural I emphasise, "... by writing to the General Medical Council",
and that was her evidence at Day 2, Page 15, Letter A.
I hasten to interpolate here that you will notice from the Notice of Inquiry that that notice
does not allege over-prescribing, or mis-prescribing, of any drug by Dr Cosgrove.
B
It is my submission that the Commission's methods mirror the Church of Scientology's
approach to psychiatry. It is perhaps a little time since you had the chance to look at the
Foster Report, or "Enquiry into the Practice and Effects of Scientology", at D3, but may I
just remind you of what I suggest is the Scientologists' approach to Psychiatrists. Mr
Foster categorised them at Paragraph 174 in Chapter 7 as representing one of those
groups who seem to have become enemies of Scientology.
C
And the approach to be taken to criticism made of the organisation is helpfully set out
under Paragraph 181, under the heading "Doubters outside the fold", which is a letter - an
internal letter within the organisation - from Mr Hubbard, the Founder of the
organisation, where he says in the middle of that page:
"Anyone proposing an investigation of or an 'Enquiry' into
Scientology
must receive this reply and no other proposal:
D
'We welcome an investigation into (Mental Healing or
whoever is attacking us) as we have begun one ourselves
and find shocking evidence'".
And then he goes on to say ...
THE CHAIRMAN: I am sorry, Mr Morris, but where is that?
E
MR MORRIS: We are at Paragraph 181.
THE CHAIRMAN: Right, thank you.
MR MORRIS: It is under a subheading "Doubters outside the fold".
F
THE CHAIRMAN: Yes, thank you.
MR MORRIS: And in response to enquiries, or as he sees it attacks, the correct
procedure he says is:
“(1) Spot who is attacking us.
G
(2) Start investigating them promptly for FELONIES or
worse using own professionals, not outside agencies.
(3) Double curve our reply by saying we welcome an
investigation of them.
H
Start feeding lurid, blood, sex crime actual evidence on the
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attackers to the press. Don't ever tamely submit to an
investigation of us",
and it goes on in the same breath and manner for the whole of the next page and, indeed,
for the whole of the rest of that letter.
He continues to write in that vein if you look under -- well, in fact it is under the same
B
paragraph. If you go on from the end of the letter I have been referring you to for four
pages, you get an internal memorandum dated 9 February 1966, "Secretarial Executive
Director: Enquiry Rumour UK", and it starts I hope the Committee have it:
"The 'news' that some lord [Lord Balniel] is 'going to ask a
question in the House as to why the Health Minister here
does not conduct an Enquiry into Scientology like in
C
Melbourne".
And then he comes up with such comments as:
"4. Obviously we could have had a ball and put psychiatry
on trial for murder, mercy killing, sterilisation, torture, and
sex practices and could have wiped out psychiatry's good
D
name".
Over the page at sub-paragraph 4,
“Well, scientology isn’t like psychiatry. In psychiatry they think adultery is a
cure for.” You guess it. Curve every answer with answers that make lurid press
to psychiatrists cost.”
E
At paragraph 184 a few pages on, we come to the category of enemy entitled
“Psychiatrists.” Mr Foster days this,
“The Scientology leadership sees in psychiatrists an especially virulent class of
enemy. It is certainly true that psychiatrists in general have expressed no approval
of Scientology theories and tend to regard Scientology processing as potentially
F
harmful, especially to unstable minds.
The Scientology leadership has reacted energetically: - ‘Hubbard says more
psychiatrists are nuts than any other section of the community, he is stating an
observable, statistical truth.”
G
It goes on in that light for further pages. At paragraph 186, the final heading under the
heading dealing with psychiatrists, there is reference to their attempt to take over
organisations and one is specified here, the National Association of Mental Health, a UK
body, by joining it in large numbers.
That is the philosophy behind Scientology, a philosophy that is endorsed, in my
submission, by the Commission. For example, if you look at the letter heading on D12, it
H
is an organisation established by the Church of Scientology to investigate and expose
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psychiatric violations of human rights. Copyright is claimed at the bottom of that page,
“All rights reserved. Scientology is a trade mark and service mark owned by
Religious Technology center and is used with its permission. Scientology is an
applied religious philosophy.”
Their methods, and when I say “their” I am referring to the Commission’s methods, are to
B
make unsubstantiated allegations. One particular victim of those allegations was
Professor Sir Martin Roth, a Psychiatrist in Newcastle. Can I hand up material about
that? (
Same handed)
THE CHAIRMAN: This will be D14.
MR MORRIS: There are in fact two pages to D14.
C
THE CHAIRMAN: We will refer to the newspaper cutting as D14 and the e-mail as
D15.
MR MORRIS: This was a defamatory claim, I suggest, that was made in November 1988
against the Professor. The article containing the libel is set out there in the first and
second paragraph,
D
“Dozens of people of Tyneside could have brain damage from experimental drug
tests carried out almost 20 years ago.
The Sussex based Citizens Commission on Human Rights claims Geordie guinea
pigs were tested with the hallucinogenic drug LSD by a team headed by world
renowned psychiatrist Sir Martin Roth at Newcastle University in the early
E
1960s.”
The upshot of that was, as can be seen in the e-mail setting out a press cutting from the
Northern Echo of 22 June 1990, when the Professor accepted very substantial libel
damages over a highly defamatory newspaper article. It had suggested that he had been
involved in experiments on humans that led to many deaths and injuries. The front page
story in the weekly Newcastle Times was headlined, “Dozens brain damaged by LSD.”
F
“It claimed to be an account of the findings of a report by a group called The
Citizens Commission of Human Rights which is part of the Scientology
organisation. The November 1988 article made three highly defamatory and
utterly false allegations about Sir Martin.”
G
I need not go on. That this particular leopard has not changed its spots, I suggest is
confirmed by the current website for the organisation.
THE CHAIRMAN: This will be D16. (
Same handed)
MR MORRIS: This is a print out of the front pages of the Commission’s website. It was
taken on 23 January 2004. Again, its statement is legible on the first page, “Investigates
H
and exposes psychiatric violations of human rights.” Over the page, and unfortunately it
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has not come out on the photocopy, there is a black box in the middle where you can
read, “There is no science to psychiatry only …” In your photocopies what cannot be
read is what appears beneath and this is something that changes every few seconds. The
words that appear and can be seen on this original print out copy which I will hand up in
due course for your observation, but it can be seen faintly here but clearly. These words
alternate,
B
“There is no science to psychiatry only misappropriation.
There is no science to psychiatry only pretended authority.
There is no science to psychiatry only betrayal.
There is no science to psychiatry only graft.”
C
There are other words that appear there. These include,
“There is no science to psychiatry only abuse.
There is no science to psychiatry only greed.”
D
Can I hand up the original so that the Committee can see those words that appear in the
black box. I do not invite them to do so now unless they wish to. (
Same handed)
THE CHAIRMAN: I think this is the same.
MR MORRIS: It is D16, but it is the original print out. The final suggestion, and I only
make it as a suggestion, or a piece of evidence that I would suggest points to the
E
continuing ability of this organisation under its executive director to misrepresent people
is to be found in two letters written by Mr Daniels dated 28 May 2001. (
Same handed)
THE CHAIRMAN: This will be D17.
MR MORRIS: These are two chasing letters to the Council asking what is happening in
relation to the complaints that have been lodged by the Commission. You will see on the
F
left hand side various personnel, clearly part of the organisation of the Citizens
Commission on Human Rights. You will see there under “Politics and Law” in relation
to both letters – I am not going to say this in public – the name of somebody who was
sitting on your Committee until he stood down from the Committee on the first day. I am
not certain that those are one and the same person. I have not been able to make inquiries
yet as to that fact. It certainly appears to be the same name. I do not know whether the
G
qualifications match.
If it is the same name, and if that member of the Committee was correct in describing his
relationship with the Scientologists, and I have absolutely no reason to doubt what he is
saying is correct, then this appearance of his name representing him to be active within
the Citizens Commission on Human Rights is wholly false and wholly misrepresentative
of his real position.
H
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For all those reasons, I suggest that head of charge 6 has arisen out of a cruel
manipulation by the organisation of Mr Daniels in particular, of Mrs D in the
promulgation of this complaint. Unfortunately, it has been added by what I have to
suggest is Mrs D’s own dishonest attempts before you to disguise the Commission and
Mr Daniels’ role in the formulation of this complaint. That is a matter which I suggest, if
you accept as probably right on the balance of probabilities, is such that it falls into that
category where it can be said that no right thinking person would approve of this
B
Committee proceeding to inquire in relation to that complaint, given the fraudulent
background to it.
Those are my submissions on head of charge 6. The question then arises, if you accept on
the balance of probabilities that it would be an abuse to proceed to inquiry into that head
of charge, what effect, if any, does that complaint have, or did it have on the decision to
proceed with the other charges that were formulated in the letter of 1 October 2002?
C
As I conceded last week, there was nothing explicit on the face of the documentation that
was disclosed to me by the Council and the Council’s Solicitors to suggest any causal
link between the decision to proceed with the matters which, on any view, had been
dormant for a considerable period of time in October 2002. What I do say is that a
significant index of suspicion is raised by a number of factors.
D
First, the delay of 21 months by the Council in responding to the inquiry made by the
Medical Protection Society, Dr Cosgrove’s defence organisation, about the identity of
Mrs D. Secondly, a press release issued by the Commission before any decision had been
taken by the Council to issue the rule 6 letter on 1 October 2002. Thirdly, the breach of
promise or denial of legitimate expectation that the complaints or informations either
would not be proceeded with at all or would be dealt with under the performance
procedures. Fourthly, the refusal to give relevant disclosure by the Council.
E
Can I turn to those in turn? First, the delay of 21 months in the Council responding to the
inquiry. You should have the inquiry and the response. (
Same handed). The first is a
letter of 25 January 2001.
THE CHAIRMAN: Shall we make that D18 and the second one D19?
F
MR MORRIS: The first letter was addressed by Dr Gerard Panting of the MPS to the
Council on 25 January 2001.
“You may remember I telephoned you about this case in the middle of
December.”
G
That would be December 2000.
“The concern here is that the complainant is not who she purports to be.
During our telephone conversation you said you would discuss this internally with
the caseworker involved and revert to me.
H
Dr Cosgrove has had a further communication with the caseworker and has also
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spoken to her over the telephone.
The concerns in this case are real in that the signature of the complainant does not
match the signature in previous correspondence and the spelling of the surname
has also changed.
Dr Cosgrove argues (in my view, reasonably) that it is essential that we are certain
B
of the identity of the complainant to avoid inadvertent disclosure of this
information.
I look forward to hearing from you in due course.”
The reply was not given to that until after the issue of the Rule 6 letter in October 2002 –
9 October 2002, in which a different case worker says:
C
“You refer to a letter which you sent to Mr Phillips’ predecessor on 25 January
2002.”
That, I suggest, is a mistake and it was a reference to the letter of 25 January 2001.
“I am sorry that due to an oversight we did not respond to your queries about the
D
identify of Mrs D. It appears that our enquiries in relation to this were not
communicated to you. I now enclose for your information a copy of a letter from
Mrs D enclosing a copy of her driving licence. I enclose a further letter from Mrs
D to us dated 11 December 2001.”
Sir, I think you have those letters in your existing exhibits. So, there was a 21 month
delay by the Council in relation to what, on all accounts, was an important enquiry.
E
Secondly, the press release, which was published issued by the Commission before the
issue of the Rule 6 letter. If I can hand that up. (
Produced) Sir, perhaps the first in time
should be the press release which is headed, “Psychiatrist under Scrutiny for Prescribing
Practices.”
THE CHAIRMAN: We will make that D20 and the newspaper cutting D21.
F
MR MORRIS: The press release is what formed the basis of the article in the Bath
Chronicle dated Friday September 20 2002. You will recall that was before the date
when the Council’s solicitors formally wrote to the Registrar on 26 September and before
the Rule 6 letter dated 1 October 2002. The press release from the Commission displays
a remarkable knowledge about the state of affairs at the Council in relation to Dr
G
Cosgrove, which goes beyond their own complaint:
“A batch of complaints on Bath-based psychiatrist Patrick Cosgrove may soon be
the subject of a General Medical Council (GMC) inquiry into his practice.
Complaints from all quarters of the medical profession, as well as patients, have
been lodged with the GMC about Dr Cosgrove, who runs his private practice from
the Bristol Priority Clinic, Bath. Both his conduct and his performance have come
H
under scrutiny and the case is currently at the screening stage with the GMC.”
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That found its way into print in the Bath Chronicle:
“A psychiatrist whose work with children has been criticised could face an investigation.
The Citizens Commission on Human Rights (CCHR) claims complaints about Dr
Patrick Cosgrove’s conduct and performance have been lodged with the General
B
Medical Council”
and the article goes on.
The third pointer which raises the index of suspicion as to the effect of Head of Charge 6
is what I have already outlined, I suggest, as a breach of promise or the denial of a
legitimate expectation as to the way various complaints were going to be dealt with by
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the Council. Either there was a legitimate expectation that they would not be proceeded
with at all or, there was a promise that they would be dealt with under the Performance
procedures.
I am going to take you now through what information I have available to me for setting
out the basis on which I make those submissions. I need to hand you, please, a bundle of
documentation. (
Produced)
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THE CHAIRMAN: This is D22.
MR MORRIS: I think it would be most appropriate and it would make sense – or help to
make sense, perhaps of my submissions – if I just took you through this documentation
and why I say it is relevant.
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The first letter – and I hope it goes in chronological order – dated 2 May 2001, is
addressed to Dr Cosgrove and comes from the Fitness to Practise Department and relates
to the complaint that was received from Dr Chubb. We are dealing here with Head of
Charge 9, which formulates the allegations based on that complaint in that paragraph and
relates to a letter sent by the doctor on 17 November 2000. It tells Dr Cosgrove what has
happened:
F
“My colleague wrote to you on 12 February 2001 informing you about a
complaint we received about you from Dr Helen Chubb, Cardiff and Vale NHS
Trust.
Your complaint has been considered by both a medical and non-medical member
of the GMC. They are appointed to decide whether the GMC should take forward
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complaints about the conduct and performance of doctors. This letter conveys
their decision.
The members were concerned about the allegations made against you and have
therefore made a decision to refer this matter for consideration under our
performance procedures.
H
The file on this complaint has now been transferred to the performance team and
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you will hear from them in due course.”
Over the page a letter later on that month relating to a complaint received from
Pembrokeshire and Derwen NHS Trust. That relates to patient B at Head of Charge 3.
MR PEARCE: May I interject. I am sorry to interrupt. I am not at all clear this is being
suggested that this is those matters contained in that charge. If that is about to be
B
suggested, I do not think that that is correct. I just make that point in advance of the
submission.
MR MORRIS: I need time to check that, if that suggestion has been raised. Sir, I think it
is important I get that right and I would not wish to proceed if that is wrong, obviously, in
relation to that particular matter. I am not sure when you were considering taking a break
this morning. I wonder if this might be an appropriate time.
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THE CHAIRMAN: I suspect you still have quite a bit to go so that I think this might
very well be a convenient time to have a break and we will reconvene around 11.15.
The Committee adjourned for a short time
MR MORRIS: Sir, I have spoken with Mr Pearce and I think he accepts now that the
D
letter written by the Council on 24 May 2001 in relation to a complaint made by the
Pembrokeshire and Derwen NHS Trust, is the same complaint that features in Head of
Charge 3, which deals with the letter written by Dr Cosgrove on 3 December 1999 to the
patient’s GP, with a copy to Dr Al-Shabnder and the remarks made about Dr Al-Shabnder
in that letter.
MR PEARCE: Yes, sir.
E
MR MORRIS: Again, this was as letter of 24 May that conveyed the decision of the two
screeners, the medical and non-medical. It sets out their powers and then says:
“In this case the members do not consider that the information received
from Pembrokeshire & Derwen NHS Trust warrants further consideration
under the conduct procedures. However, they remain concerned about the
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number of complaints they have received about your conduct. In view of
this they have decided to review this matter for further consideration under
the GMC performance procedures.
This file will be passed to our performance section who will be in contact
in due course.”
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That was May 2001 and we then skip a long period of time and there is incomplete
documentation here in my submission to tell the whole story. We skip to a memorandum
written by Dr Malcolm Lewis, a medical screener, dated either 24 or 29 February 2002.
It is headed “This is a screening memo that can be copied into the following four cases
against Dr Cosgrove.” It should follow on the letter of 24 May.
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“I have considered the following cases of complaint against Dr
Cosgrove”
and then various file references are set out there.
“1.
It is my view that the nature of these complaints in the
circumstances of Dr Cosgrove’s practice could not amount to seriously
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deficient performance. There is a pattern of poor practice but the issues
relating to prescribing would be impossible to prove either way.
2.
In particular I feel the most important practice on which this case
must proceed relate to issues of potentially serious professional
misconduct in view of two repeated themes in the various cases. I have
highlighted these with purple tabs in most of the files.
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3.
The Citizens Commission under Human Rights v P Cosgrove
200/1711. There is a complaint of inadequate monitoring with lack of a
developed protocol and lack of evidence of shared care and advice to any
general practitioners.
4.
2000/2124 (as above also relates to Master D)
D
5.
Dr Kurnar v Dr Cosgrove – 2000/0040. This represents the
second theme developed from the complaints, that is of inappropriate or
disparaging remarks regarding medical colleagues. There is also a lack
of evidence of any advice or agreement of monitoring of this child
through a shared care protocol. These matters would raise issues of
potential SPM”
E
Can I say at this stage, sir, I think it will appear in later correspondence that that case was
closed and no action taken against Dr Cosgrove on it.
“6.
Pembrokeshire Trust v Cosgrove – 2000/0871. Issues raised
suggest inappropriate comments, disparagement raising issues of
potential SPM.
F
7.
In this case the doctor has been previously informed that this case
would not proceed under the conduct procedures. However, cases that
have come to light since would enable this case to be resurrected under
the appropriate clause.”
G
Sir, that is a refrain that you will see further in further documentation. May I say at the
very outset that in my submission there is no evidence disclosed here or available to the
defence to suggest that there were subsequent cases to the decision to refer to
performance, which was communicated in May 2001. There was nothing that post-dated
that that could have caused or given good grounds for re-visiting that decision as was
done by this screener in February 2002 or, indeed, subsequent to his letter of February
2002 and running up through to 1 October 2002 when the Rule 6 letter was issued.
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“8.
Cardiff and Vale NHS Trust v Cosgrove – 2000/3359. No advice
regarding monitoring or shared are protocols with a general practitioner,
potential SPM.
9.
Moses v Cosgrove – 2000/1390. I think this may be the same one
as the Pembrokeshire and Derwen Trust. There are tabs in the page and
what I would like to say is breach of professional confidence, the letter
B
from Dr Moses to Dr Cosgrove was primarily about Dr Cosgrove and not
his patient. It should have been afforded the confidentiality that Dr
Moses clearly requested in her headed paper. Also disparagement, there
is a general suggestion that a sub standard level of care was being
delivered at the NHS Trust and finally no advice or instruction regarding
appropriate monitoring by the GP responsible for prescribing, that is no
shared care protocol.
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10.
1997/1376. Quite a big file, I have stuck a tab in it behind tab 11
which was an original draft Rule 6 letter which came to nothing in the
end. I think we conceded to his rebuttal by the look of it.”
This, sir, I think it would be agreed is dealing with Head of charge 2, Patient A.
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“Anyway, I think under head 3”
- that is presumably clearly a reference to the draft Rule 6 letter –
“if you add…”
and various additions are suggested.
E
That was the screener’s view on February 2002. It came after earlier screening of the
complaints by another medical screener and a lay member.
Running through what was disclosed chronologically, we then turn to a memorandum –
an internal GMC memorandum dated 28 May 2002, between staff at the Council. I am
not quite sure of their status but they must be case workers or more senior, in my
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submission.
Dr Moses’ complaint against Dr Cosgrove, you asked for a brief
summary. I am providing only a brief summary at this stage as it is one
of six current cases involving Dr Cosgrove which I have recently
inherited. I am also aware of an imminent joint referral by a Health
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Authority in Wales and the Home office Drugs Inspectorate.
Background
In recent years we have received a number of complaints and concerns about Dr
Cosgrove’s activities. He is a private doctor who specialises in treating children
diagnosed as suffering from Attention Deficit Hyperactivity”, and goes on to give a
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background of the sort of complaints being made about him:
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"3. Dr Cosgrove has robustly defended all complaints
against him, often with the support of parents who consider
that their children have benefited from treatment with
Ritalin. In the past screeners have concluded that Dr
Cosgrove has acted on the fringes of acceptable practice
and complaints against him have been closed.
B
However in January 2001 a screener referred a number of
complaints and referrals to the Performance Procedures. Dr
Cosgrove was informed of this decision.
In February 2002 a number of the cases were re-screened
by a different screener. He decided that they should be
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dealt with under the Conduct procedures. The screener
identified ..." (and that is clearly a reference to Dr Malcolm
Lewis' memorandum) "... two main potential SPM themes
as being the lack of a developed protocol or proper
consultation with other practitioners when treating patients
and making inappropriate and disparaging remarks about
medical colleagues. (As I understand it, Dr Cosgrove has
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not been told about this change of decision)",
and it then goes on to deal with Dr Moses' complaints:
"Next steps
9. The Cosgrove case is both complex and sensitive. I
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need to assess all cases to see if they have been dealt with
according to our procedures and to seek legal advice about
the latest screening decision. I will also need to deal with
the impending referral from Wales which I understand will
include allegations of irresponsible prescribing and may
include the strongest evidence to date of possible serious
professional misconduct on the part of Dr Cosgrove".
F
Sir, may I just say at that stage - and I shall be corrected if I am wrong - that again my
submission is that there is no evidence that there was a referral from Wales subsequent to
the decision to go down the Performance route and prior to the issue of the Rule 6 letter
on 1 October 2002.
G
There is then a memorandum from the same staff member, Ann O'Sullivan, to Peter Steel
a solicitor to the General Medical Council:
"I am referring to you 10 open cases against Dr Cosgrove
for legal advice on a couple of points and a request that you
consider draft charges for the screener to consider for
referral to PPC.
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Background
Please refer to the briefing note I prepared for Christine
Couchman ..." (I think that is the previous memorandum)
"... which provides a very brief summary of the background
to these cases and the issues we need ... I have also
prepared a table which summarises the stage we have
B
reached with each case (flag B)".
And if you look on, sir, you will see that table set out under the heading "Cosgrove open
cases list" - two pages of table. We will come to that in due course, but the memorandum
continues:
"As my note to Christine explains and the table shows, a
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screening decision was made that the concerns about Dr
Cosgrove should be dealt with under the Performance
Procedures. This decision was communicated to Dr
Cosgrove in May last year, although no further action was
taken and, as far as I can see, there has been no further
communication with Dr Cosgrove on this.
D
However, since then, the cases have been reviewed by
another medical screener who considered that the cases
raised issues of SPM and not SDP. There is no memo. to
the Screener and I understand that Dr Lewis came into the
office to review the files.
I now wish to refer the cases formally to a screener with
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draft charges for referral to the PPC. Before doing so
however, I should be grateful for your view on whether
there will be any difficulties with changing track on how
we propose to deal with the cases. In my view we can
argue that the complexion of the case has changed since
further information has been received from the police -
information which suggests irresponsible prescribing. This
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information was received very recently and has not yet been
seen by a screener".
Again, in my submission, there is no evidence of that that postdates the re-screening or
predates the re-screening by Dr Lewis, or indeed postdates his re-screening in February
2002 and before the Rule 6 letter of 1 October 2002.
G
And then we have the open cases list, which I will come to if I may when I deal with each
of the Heads of Charges that are before you and indeed were listed in the Rule 6 letter.
If we go on then to the response from Mr Steel, 30 August 2002, to Peter Lynn of the
GMC re Dr Cosgrove:
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"Thank you for your instructions to advise on these
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A
complicated and long-running matters. We have of course
spoken about them but here is a short summary with my
advice;
1. Performance/Conduct?
It appears that the files were reviewed by Malcolm Lewis
B
27 February 2002 who screened them all down the Conduct
route (I see his note of even date) despite the fact that some
had already been screened down the Performance route and
Dr Cosgrove had been informed that this was the case. I
have discussed this with Paul who is of the view that on
policy grounds alone we cannot go behind this decision,
regardless of whether it was correct in law to do so. It may
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in fact have been legitimate for the screener to say that in
the light of the further complaints this case was better dealt
with down the Conduct route, but that is perhaps an
academic debate",
a view I do not share on behalf of Dr Cosgrove:
D
"I enclose the draft charge, which is the best I can do with
the information available. I have drafted this in the second
person - you may wish to change it...", etc.
And the final document, 16 August -- no, I am sorry. I have got out of sync.
chronologically.
This should come before the 30 August memo. and I apologise. It is
again from the solicitor to Peter Lynn:
E
"I think you discussed this doctor Ann O'Sullivan, who
went off on sick leave earlier this week",
and reference is made to the memo. to Christine Couchman dated 28 May. I think that
was one of the earlier memoranda. Yes, it was one of the earlier memoranda. It then
refers to the table:
F
"Ann's table had seven cases on it, but there are three
additional cases ... The later two are complaints received
from Dr Cosgrove. I am sorry that Ann went off on sick
leave before completing the table and finalising her memo.
However, I hope there is here enough for you to form a
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preliminary view. I am sorry to burden you with ten files
..."
Paragraph 4:
"For my part, I would suggest the suggestion by Ann that
although there was an initial screening decision to refer
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some matters into performance, it should be open to the
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Council to decide that the complexion of the case has
changed because of further information, outlining serious
issues, that has continued to arrive.
I should add that although Ann mentioned PPC in her
Paragraph 6, we should not exclude performance action,
depending on your advice, and a further consultation with
B
Dr Lewis. However, he clearly felt that this case was now
in the realms of misconduct rather than deficient
performance".
And again, sir, I submit, or I say, that in relation to the suggestion about "... further
information outlining serious issues..." there has been nothing disclosed to the Defence
and there is nothing that appears in the Rule 6 letter that suggests that any information -
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further information - about Dr Cosgrove arrived subsequent to the decision to send this
case down the Performance route.
THE CHAIRMAN: I am sorry, did you say the Conduct route?
MR MORRIS: No, the first decision taken to send it down the Performance route.
D
THE CHAIRMAN: Oh, I am sorry. Yes, I follow what you are saying. Thank you.
MR MORRIS: Can I turn then to the Heads of Charge that you have before you, sir, and
the first one Head of Charge 2 dealing with Patient A. It might help if you have the table
- the "Cosgrove open cases list" table - open and available to you.
This is the patient who was being cared for at one time by Dr Holme and he is the
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Complainant in relation to that case. Dr Holme, Salisbury Healthcare NHS Trust, and you
will see that in the first box for 1997. And you have got there, taking you across the top,
the identification of the Complainant, or the referrer. Well, it is the case reference first of
all and then the Complainant or referrer. It is then the date the case was opened, which
would appear in each case to be very shortly after receiving the written complaint; then
the nature of the case; whether the complaint had been disclosed to the doctor; the
decision and the date when the decision was taken first by the Medical Screener and
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secondly by the Lay Screener and whether or not the Lay Screener agreed with the
Medical Screener and the date of the Lay Screener's decision; whether or not then, in the
next column, the decision was notified to the doctor and the date upon which it was
notified; and then a final column "Rescreened as conduct? Any other comments?"
In relation to that first complaint then, Head of Charge 2, Patient A, Dr Holme, there are
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two entries in that box under the same case reference "1376" - "04" and "06" - and there
is a reference to "HO", presumably Home Office, Drugs Inspectorate. That was a case
opened on 1 October 1998, although it appears that the information was received on the
22nd -- 22 July 1999 in my submission relates to the date of the Complainant's letter - Dr
Holme's letter.
The Home Office Drugs Inspectorate referral is, in my submission, a case that was closed
H
and no action has been taken against the Doctor. It certainly did not appear in the Rule 6
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A
letter and it does not appear in the charges before you. And, importantly, in any event it
predates the decisions of the first Screener which were taken towards the end of 2000 and
the beginning of 2001 in relation to all the other complaints.
In relation to the Dr Holme complaint, though, at Paragraph 2 in that box, dealing with
the chronology of it, the complaint was received from Dr Holme on 22 July 1999.
Professor Taylor, you will see in the final box where it is mentioned that, "There is an
B
expert report by Professor Taylor re matters raised at /04 and /06". Professor Taylor's
report I can tell the Committee is dated 22 October 1999 and Dr Cosgrove was informed
of the existence of the complaint from Dr Holme on 18 November 1999 and you can see
that in the relevant column.
Dr Cosgrove responded to that complaint on 6 December 1999. It does not appear in the
table
there, but it is clear on documents disclosed earlier that there was such a response or
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rebuttal. And, sir, that is a reference to -- that is referred to in Dr Lewis' memorandum
about this Head of Charge or complaint.
You can see at Paragraph 10 of his memorandum the reference "197/1376", which is the
reference we are dealing with now, where he said:
"There was an original draft Rule 6 letter which came to
D
nothing in the end. I think we conceded to his rebuttal by
the look of it",
and that in my submission is a reference to Dr Cosgrove's rebuttal, but then he makes
proposals for amending that draft Rule 6 letter.
Now in relation to this complaint, although the Doctor was informed about it on 18th
E
November 1999, he received no formal response from the Council until the Rule 6 letter
of 1 October 2002; nearly three years from the date when Dr Cosgrove was informed of
the existence of the complaint.
The Medical Screener's decision of 16 August 2000 and 31st August 2000 has not been
disclosed despite a request by the Defence. In my submission, that would be a relevant
disclosure and it might cast light on what happened to the case and why it came to
F
nothing and no action was taken until the Rule 6 letter.
But this case falls in my submission into the category -- and perhaps I should have
prefaced my remarks by saying there are two categories of case here, in my submission.
Those where the Doctor was given a legitimate expectation, or is entitled to a legitimate
expectation, that the cases would not be proceeded with, and the second category is those
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where he was given a promise that they would be dealt with under the Performance
procedures.
I say that that legitimate expectation arose, sir, and it arose for the reason that he was told
nothing and was given no information as to what had happened to that complaint during
the three-year period that elapsed from being told about the existence of that complaint to
the Rule 6 letter on 1 October 2002.
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The second Head of Charge that comes into that category is in fact Head of Charge 6,
Patient D. You will see that on the open cases list at the bottom of the first page under
reference "2000/1711 Complainant Citizens Commission on Human Rights", and that
runs over. I think it should read "about" and then there are two names there, one of which
is Mrs D.
The first complaint that was made by the Commission was dated 28 June, sir, and you in
B
fact now have that at D12.
There was a further complaint dated 2 October 2000 which I do not believe you have.
(
Pause) Sir, I can tell you that if you do not have documentation about I do not propose
to give it to you, but it was a complaint about a report in a newspaper in which Dr
Cosgrove is reported as describing his use of the drug Ritalin. That was complained about
to the Council. I can tell the Council (
sic) did not feature in the rule 6 letter and it does
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not feature in the complaint under head of charge 6. Again, importantly, it predates the
first screener’s view of cases in 2001 or late 2000.
Although it is stated that it is not clear whether Dr Cosgrove was made aware of those
complaints, he clearly was made aware of those complaints, because we have the letter
written by Dr Gerard Panting of the MPS at D18 on 25 January 2001, where he mentions
talking to the GMC in the middle of December, so some time before December 2000 we
D
know that the doctor was made aware of that complaint.
Thereafter, nothing was communicated formally to Dr Cosgrove until the rule 6 letter of 1
October 2002, in other words for at least 21 months, during which time there was
complete failure to respond to Dr Panting’s letter of January 2001. Again, in my
submission, that lapse of time gave rise to a legitimate expectation in the mind of Dr
Cosgrove that nothing further would be done in terms of GMC action in relation to that
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case.
Finally, in this category is head of charge 4, patient C, which is information sent by Dr
Moses. You will see that on the second page of the table under the reference 2000/1390,
Dr Moses of Gwent Health Care NHS Trust. Information was sent by her, I can tell the
Committee, in a letter dated 2 August 1999, although it appears that the case was not
opened until 6 June 2000. The nature of the complaint is set out in the next column. Y
F
indicates that the doctor was informed about the complaint on 9 August 2000. The
medical screener’s decision was made on 19 January 2001 and was that the case – and in
my submission the letters SDP must stand for seriously deficient performance – was a
decision, one can infer, that the case should be referred to the performance procedures of
the GMC. That was ratified by the lay screener on 1 February 2001. The defence have
asked for and have been refused access to those screener’s memoranda.
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Significantly, though, it appears that the doctor was not informed about that decision.
You see the “no” in the next column, and so again this is a case where, having been told
about the complaint’s existence on 9 August 2000, the doctor heard nothing more until 1
October 2002, that is two years and two months later when he received the rule 6 letter.
Again, in my submission, because of that period of time a legitimate expectation arose in
Dr Cosgrove’s mind that he would not be proceeded with, because of the absence of any
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information about that matter.
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That is the first category. The second category is where the doctor was specifically told
that these matters were going to be dealt with under the performance procedures. The
first of those is head of charge 3, which is the letter about Dr Al-Shabner. It is the
Pembrokeshire and Derwen NHS Trust. You will see it on the first page of the table
under reference 2000/0871. The complaint letter is dated, I can tell the Committee, 23
March 2000, although the case is opened on 1 April. The nature of the letter is made
B
clear. It was disclosed to the doctor on 7 August 2000. The medical screener saw it on 8
November 2000 and determined that it should be referred to performance. That was
ratified by the lay member on 29 January 2001. That decision was disclosed to the doctor
on 24 May 2001 and you see that second letter in your bundle at D22, where it is said that
the members, that is the two screeners, do not consider the information received from the
Trust warrants further consideration under the conduct procedures. They have decided to
refer the matter for further consideration under the GMC performance procedures.
C
Again, those original screeners’ memoranda of November 2000 and January 2001 had
been requested, but their disclosure has not been granted to the defence.
In my submission, therefore, that letter sets up not only a legitimate expectation that the
matter would be dealt with under the performance procedures. It effectively amounted to
a promise that that was what would happen to that complaint.
D
The next head of charge is 7, which is patient E. That is the Oxfordshire Mental Health
Care NHS Trust. The complainant was Miss Wendy Samways. You will see the
reference to that in the open cases table at 2000/3017, three down on the first page. The
complaint letter itself is dated 23 October 2000. The case was opened on 3 November
2000. The nature of the complaint is made clear. It went to the medical screener on 24
May 20001. I am sorry. It was disclosed to Dr Cosgrove on that date. It had been before
the medical screener on 15 February 2001, who had decided that it should go down the
E
performance route. That was ratified by the lay screener on 26 February.
The doctor was notified about that on 24 May. That is the first letter. No, it is not. You
do not have the letter notifying the doctor about that. Unfortunately, the doctor does not
still have it in his possession. I have asked for disclosure of that. I do not think there is
any objection taken by the Council for disclosure of that letter, but it does not appear to
have been found as yet. Clearly, according to this memorandum and this table, the doctor
F
was told about the decision that his case or the complaint from Oxfordshire Mental
Health Care Trust should go down the performance route.
Finally, head of charge 9, patient F. This is Cardiff and Vale NHS Trust. That you see
on the second page of the table under the reference 2000/33. The complaint from Dr
Chubb was dated 28 November 2000. The case was opened on 12 December. The nature
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of the complaint is set out there. It was disclosed to the doctor on 12 February 2001.
Again, it was screened on 23 March 2001. The decision was taken to go down the
performance route. It does not appear to have been or there is no evidence that it was
referred to or seen by a lay screener, although it must have been so done, in my
submission, before a letter was sent out on 2 May 2001 telling the doctor of the decision.
We can see that letter. It is the first document in that bundle. It states,
H
“Your complaint has been considered by both the medical and non-medical
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member of the GMC.”
If that letter is correct, that entry in the box “no” under lay screener seems to be an error.
The decision of the two screeners was,
“They were concerned about the allegations made against you and therefore made
a decision to refer to this matter for consideration under our performance
B
procedures.”
In very lengthy exposition those are the matters that come under the third category of
matters that raise the index of suspicion as to the possible effect of head of charge 6, if
you find that was probably a fraudulently promulgated charge.
The fourth heading whereby the index of suspicion has been raised is the lack of
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disclosure. The Council, as from Friday afternoon, are now declining to give any
disclosure in relation to matters about which help or assistance was sought by the
defence, in particular, in relation to the original screener’s decision memoranda, both
medical and lay, where on the one hand we have disclosed to us the subsequent screener’s
decision, Dr Malcolm Lewis, but we are deprived of the original decisions suggesting that
this case was a performance case and making that decision.
D
We have not been given any disclosure as to what happened once these cases went to
performance. We have not been given any disclosure as to the circumstances that led to
and the reasons for these matters being re-screened by Dr Lewis in February 2002. Those
matters that were re-screened were patient B, patient C, patient E and patient F.
That material, in my submission, would be highly relevant and may well assist the
defence and undermine the Council in promulgating this abuse of process argument, both
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in relation to the effect of head of charge 6 and also in relation to the separate free
standing submission that there has been a breach of promise or a thwarting of legitimate
expectation as a separate head of abuse, apart from the fact that it would also, in my
submission, be relevant material in terms of dealing with the substance, if we get to that
stage, of the particular cases and allegations made, because obviously if a screener has
taken the view and given reasons as to why these matters should not come under the
heading of conduct, those reasons might well give avenues for the doctor to explore with
F
his legal team, which currently they do not know.
Those are the indices of suspicion which are raised on the material that you now have
before you and the defence now have as to whether or not Head of Charge 6, if
improperly brought, has had a knock-on effect in relation to the other Heads of Charge.
G
In my submission those indices can help you to come to the conclusion on the balance of
probabilities that they have corrupted those remaining Heads of Charges and that those
remaining Heads of Charges, therefore, ought to be stayed as a result of those matters
flowing from Head of Charge 6.
Can I just deal with the last two complaints which post-dated the Rule 6 letter of 1
October 2002 and those are Heads of Charge 10 and 11 dealing with patients G and H.
H
Obviously I cannot submit that Head of Charge 6 had any effect on those two charges,
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because obviously they post-date it. What I do say, though, is that if as a result of Head
of Charge 6 the earlier matters have all gone to conduct whereas otherwise they would
have remained in performance and/or perhaps not been dealt with at all, then in my
submission it is quite probable that these two further complaints when they came in
would have been sent down that same route and not have been referred as conduct
matters. They are of a similar nature to the earlier six matters.
B
Can I turn finally to the breach of promise point which, even if you do not accept that as
one of the indices of suspicion does not help in relation to Head of Charge 6 and the
effect that has on the remaining charges, even if you reject that, in my submission there is
a free-standing abuse here in relation to breaches of promise and the thwarting of the
legitimate expectation that I have set out to you.
I need to justify that legally and I wonder if I can assist the Legal Assessor in that regard
C
by taking him to paragraph 462 of Archbold. I believe he has now got an up-to-date
edition.
The sub-heading here is, “Prosecution going back on promise” etc. It comes as one of a
number of headings under the major heading, under Abuse of Process at 448 it comes
under the general heading of “Application of the Principles”, that is sub-paragraph D to
be found at the top of page 336 in paragraph 457.
D
THE LEGAL ASSESSOR: In bold type “Misuse and Manipulation…”
MR MORRIS: Exactly. It is one of the sub-headings under “Application of the
Principles” and under “Misuse and Manipulation etc Process of Court and Unfairness”,
we come to, “Prosecution going back on promise”. What the editors say there is that:
E
“The prosecution of a person who in exchange for his co-operation has
received an undertaking, promise or representation from the police that
he would not be charged with an offence, is capable of amounting to an
abuse of process. It is not necessary for the applicant to show that the
police had the power to make the decision not to prosecute, nor is it
necessary for him to show that the case was one of bad faith.”
F
The leading case cited there is the one of
R v Croydon Justices, ex parte Dean, a copy of
which I think the Legal Assessor has. That is a Divisional Court case of 1993. Perhaps I
can just read the headnote to that case and take you and the Committee – I think it would
be unfair to the Committee if they did not have the case as well, so can I hand round
copies of the case. (
Produced)
G
THE CHAIRMAN: That will be D23.
MR MORRIS: The facts are set out in the headnote:
“The applicant, aged 17, and two other men, G and B, were arrested by
the police in respect of a murder investigation. The applicant did not take
part in the killing but after it had taken place he assisted in destroying the
H
victim’s car. When interviewed by the police he made statements
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containing potentially important evidence against G. The applicant
agreed to be a prosecution witness and by the time he had left the police
station he had in effect admitted doing acts with intent to impede the
apprehension of G and B, but was not then charged. The same evening,
G and B were charged with murder. Five days later the applicant again
went to the police station where he admitted for the first time that G and
B had driven him to the scene of the crime and shown him the victim’s
B
body. At the end of the interview he was informed that he was a
prosecution witness and had the protection of the police. He later went
with the police to the scene of the crime and described how the victim’s
car had been destroyed. Thereafter, the Crown Prosecution Service
decided, after a conference with the police, that the applicant should be
charged under section 4(1) of the Criminal Law Act 1967 with assisting
in the destruction of the victim’s car, knowing that it was evidence, with
C
the intent to impede the apprehension or prosecution of G and B,
knowing or believing that they were guilty of murder or some other
arrestable offence. Before he was charged, the applicant made further
statements to the police identifying articles belonging to G and B which
he had seen in the victim’s car. He was then charged. At the committal
proceedings the justices rejected a submission that they should not act as
examining justices to inquire into the offence on the ground that it would
D
be an abuse of process and also refused to adjourn the proceedings
pending an application to the High Court for a stay. The applicant was
committed for trial and applied for judicial review of the justices’
decision and the committal. On the question whether judicial review
proceedings were appropriate, and, if so, had there been an abuse of
process”
E
and there were rulings. Can I take you to the second ruling, really, which concerns us,
which is in relation to abuse of process. Under the heading over the page:
“(2) The prosecution of a person who had received a promise,
undertaking or representation from the police that he would not be
prosecuted was capable of being an abuse of process. On the undisputed
evidence in the instant case the applicant was given to understand for a
F
considerable time that he was to be a prosecution witness, from which it
almost certainly followed that he was not himself to be prosecuted for
any offence in connection with the murder; but that undisputed evidence
did not show that he received any express promise, undertaking or offer
of immunity; nevertheless in the quite exceptional circumstances of the
case, having regard to the applicant’s age at the time, the assistance he
G
gave to the police for over five weeks, it was clearly an abuse of process
for him to be prosecuted subsequently. Accordingly, the application
would be granted.”
In the heart of the Judgment given by Lord Justice Staughton at page 82, under the
heading Abuse of Process, he says half way down that passage:
H
“We were referred to three cases which suggest that abuse of process in
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this context can only exist where there is (i) delay, or (ii) manipulation or
misuse of the rules of procedure”
and authorities were cited there. The Lord Justice went on to say:
“But there is high authority that the concept is wider than that. In
Hunter v Chief Constable of the West Midlands Police [1982] Lord
B
Diplock spoke of:
‘the inherent power which any court of justice must possess to
prevent misuse of its procedure in a way which, although not
inconsistent with the literal application of its procedural rules,
would nevertheless be manifestly unfair to a party to litigation
before it, or would otherwise bring the administration of justice
C
into disrepute among right-thinking people. The circumstances in
which abuse of process can arise are very varied…’
Then Lord Devlin in
Connelly is cited:
‘Are the courts to rely on the Executive to protect their process
from abuse? Have they not themselves an inescapable duty to
D
secure fair treatment for those who come or are brought before
them? To questions of this sort there is only one possible
answer.’
His final settled Judgment over the page at 83, just above the conclusion:
“In my judgment the prosecution of a person who has received a promise,
E
undertaking or representation from the police that he will not be
prosecuted is capable of being an abuse of process. Mr Collins was
eventually disposed to concede as much provided (i) that the promisor
had power to decide and, (ii) that the case was one of bad faith or
something akin to that. I do not accept that either of those requirements
is essential.”
F
In his conclusion he went to apply those principles to the facts of that particular
case and decide that the proceedings would have to be quashed as an abuse.
The editors of Archbold continue at 462:
“Breach of a promise not to prosecute does not necessarily and
ipso facto
G
give rise to abuse but the longer that a person is left to believe that he will
not be prosecuted”
- and I rely on that –
“the more unjust it becomes for the prosecution to renege on its promise
that any manifest prejudice to him resulting from his co-operation will
H
make it inherently unfair to proceed”
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and there is a reference to
R v Townsend 1997. In a Privy Council case,
The
Attorney General of Trinidad and Tobago v Phillip 1995, it was said that:
“It could well be an abuse of process to seek to prosecute those who have
relied on an offer or promise of a pardon and complied to the conditions
subject to which that offer was made, even though the path was invalid.”
B
They go on:
“Where a defendant had received a letter constituting a ‘final decision not
to prosecute’ in respect of an allegation of sexual offences against a ten-
year old boy, the reinstitution of proceedings many years later could not
be justified by reference to the fact that a second boy had more recently
C
made a complaint, nor by reference to the fact that the original decision
had been taken in the light of the then rule of evidence requiring
corroboration. The prosecution should have been stayed as an abuse and
the conviction was quashed as unsafe on account of the prejudice arising
from the non-availability of various materials from the original
investigation.”
D
That is the case of
R v D reported in Archbold News in the year 2000.
There is then a case called
R v Bloomfield – copies again I would like to give to
the Committee.
THE CHAIRMAN: This will be D24. (
Produced)
E
MR MORRIS: If I can read you the headnote. This is a Court of Appeal
decision in 1996:
“The defendant was charged with possession of a Class A controlled
drug. At a plea and directions hearing at the Crown Court prosecuting
counsel indicated to defence counsel that the Crown wished to offer no
evidence because it was accepted that the defendant had been the victim
F
of a set-up. Owing to the presence in court of certain people it would
have been embarrassing to the police and prosecution if no evidence were
offered that day so counsel spoke to the trial judge in his room. An order
was then made in open court to adjourn the case and relist it ‘for
mention’. The Crown Prosecution Service subsequently arranged a
conference with new prosecuting counsel and thereafter informed the
G
defence solicitors that the Crown intended to continue the prosecution.
An application at the trial to stay the proceedings as an abuse of process
having failed, the defendant pleaded guilty and was sentenced to three
months’ imprisonment. On appeal against conviction on the question (1)
whether it was an abuse of process for the Crown to revoke a previous
decision, communicated to the defendant and the court, to offer no
evidence and, if it could be an abuse of process, whether (2) it made any
H
difference if prosecuting counsel had made that decision and
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communicated it to the defendant and the court without authority.”
The appeal was allowed:
(1) that whether or not there was prejudice to the defendant, it would
bring the administration of justice into disrepute to allow the Crown to
revoke its original decision without any reason being given as to what
B
was wrong with it, particularly as it was made
coram judice in the
presence of the judge; and
(2) that neither the court nor the defendant could be expected to enquire
whether the prosecuting counsel had authority to conduct a case in court
in any particular way and they were therefore entitled to assume in
ordinary circumstances that counsel did have such authority.
C
On the final page of Lord Justice Staughton’s judgment he sets out his
conclusions, page 143:
“Looking at the case in the round, it seems to us that this is an unusual
and special situation. The decision to defer the trial on December 20 was
taken for the benefit of the prosecution in order that they would not be
D
embarrassed when it was said in court that no evidence was being
offered. The statement of the prosecution that they would offer no
evidence at the next hearing was not merely a statement made to the
defendant or to his legal representative. It was made
coram judice, in the
presence of the judge. It seems to us that whether or not there was a
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
E
beck and call, free to tell it one day that it was not going to prosecute and
another day that it was.
Of course the circumstances of each case have to be looked at carefully,
and many other factors considered. As the Court said in the
Mahdi decision, we are not seeking to establish any precedent or any general
principle in regard to abuse of process. We simply find that in the
F
exceptional circumstances of this case an injustice was done to this
appellant. In those circumstances the appropriate course is to allow the
appeal and quash this conviction.”
Sir, in my submission those cases and the guidance given by the editors of
Archbold are wholly appropriate to what has happened in this case. The analogy
G
is valid, that you have here on the one hand a promise - a clear indication - that
the cases are going to be dealt with by Performance, and on another you have
through lapse of time - that in one case extended, I think, to three years - a
legitimate expectation that nothing further was going to happen in relation to
complaints made against the Doctor.
There is no evidence certainly not disclosed to me, or the Defence, or in the Rule 6 letter,
H
or in the Heads of Charge, that there was any other complaint or material that came to the
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attention of the Council that might begin to justify the Council going back on its promise,
or revoking the expectation that had been allowed to grow in Dr Cosgrove's mind. For
those reasons I submit that on its own, out with any concerns arising out of Head of
Charge 6, certainly in relation to those cases covered by the breach of promise and the
expectation or legitimate expectation, which is all the charges up until the Rule 6 letter
but does not include the subsequent two charges -- in relation to those six charges in my
submission it would be an abuse on this ground to allow those cases to proceed.
B
The third freestanding ground upon which I submit abuse is in relation to the failure of
the Council to make proper disclosure. I have outlined the sort of disclosure that one
could expect and the documentation that one could expect. It, in my submission, clearly
or most probably exists. One can divine that from the bundle of documentation that has
been disclosed - D22.
C
As to whether non-disclosure can amount to abuse, can I refer you to what I hope is a
helpful passage and again there are copies for the Committee. I hope there are enough to
go round.
THE CHAIRMAN: This will be D25.
(
Copies of the document were distributed)
D
MR MORRIS: I think that the learned Legal Assessor should already have one.
THE LEGAL ASSESSOR: I have not got it with me, but I will give my copy back.
MR MORRIS: You have not got it with you, right. Let us see how we go then.
E
This is an extract from a textbook called "The Abuse of Process in Criminal
Proceedings", by David Corker and David Young, and it is the second edition dated 2003.
I am not going to take you through all of this, but the opening paragraphs under
"Non-disclosure Abuse" are informative:
"It is trite law that an accused's right to fair disclosure is
regarded as inseparable from his right to a fair trial. An
F
accused must be in a position to fairly advance his
arguments by way of fair disclosure of material in the
Crown's possession.
In R -v- Togher the Court of Appeal
held that where an accused's right to a fair trial was vitiated,
for example because of non-disclosure, this would almost
invariably result in the quashing of the conviction. Woolf
G
CJ held 'If they could establish an abuse, then this court
would give very serious consideration to whether justice
required the conviction to be set aside’.
Recent developments have underlined that the right to
disclosure is regarded as a fundamental condition or
hallmark of fairness. The Attorney-General's Guidelines on
H
the disclosure of information in criminal proceedings were
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introduced in an attempt to improve the operation of the
current statutory disclosure regime".
Those guidelines, for the assistance of the Legal Assessor, are set out in the first
supplement to the 2004 Edition of Archbold at Paragraph A/242.
THE LEGAL ASSESSOR: Thank you.
B
MR MORRIS:
"The opening paragraph declares:
'Every accused person has a right to a fair trial, a right long
embodied in our law and guarantee under article 6 of the
C
European Convention on Human Rights. A fair trial is the
proper object and expectation of all participants in the trial
process. Fair disclosure to an accused is an inseparable part
of a fair trial'.
These laudable words are followed up in para 5 of the
guidelines, with an unequivocal warning to investigators
D
and disclosure officers namely:
'A failure to take action leading to proper disclosure may
result in a wrongful conviction. It may alternatively lead to
a successful abuse of process argument or an acquittal
against the weight of evidence'",
E
and it goes on to say why the guidelines were produced in that it was:
"... in response to concerns about the operation of the
disclosure provisions in the Criminal Procedure and
Investigations Act 1996 ..."
And then over the page, under "The CPIA 1996; prosecution failures to comply with the
F
service of 'primary' and/or 'secondary' disclosure", I do not want to get into the technical
detail of that but what is clear is that the prosecution are under a duty to disclose any
material that might be reasonably expected to assist the accused's defence and you can see
that in the opening sentences of Paragraph 4.59. That is particularly the case where the
line of defence has been identified by the Defendant, sir, as Dr Cosgrove has done in this
particular case:
G
"Clearly those accused ..." (it goes on to say) "... who have
set out their defences in interview, have served full defence
case statements ... followed up by chasing letters to the
prosecution in correspondence, are in the best position to
maximise their disclosure opportunities".
H
And then under the heading "Examples of non-disclosure giving rise to abuse", I will not
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cite them all but the first one:
"In
R -v- Blackledge following pleas of guilty to breach of
export controls concerning arms to Iraq, it transpired via the
Scott Inquiry that exculpatory material had been withheld
from the defence. This material, whilst not affording a
defence to the offence charged, would have enabled the
B
accused to mount a probably unassailable abuse
application; that the exports of weapons had been secretly
approved or deliberately overlooked by the DTI. The Court
of Appeal promptly quashed the convictions of all accused
on the grounds of non-disclosure".
And if I can then take the Committee to the impact of the European Convention of
C
Human Rights and Article 6, under 4.68 and 4.69 there is cited there a case of
Kaufman
-v- Belgium:
"'everyone who is a party to ... proceedings should have a
reasonable opportunity of presenting his case to the court
under conditions which do not place him at a substantial
disadvantage vis-à-vis his opponent'.
D
In
Jespers -v- Belgium the Commission stated that the now
enshrined 'equality of arms' principle imposes on
prosecution and investigating authorities an obligation to
disclose any material in their possession. The obligation is
applicable to any material to which they could gain access
which may assist the accused in exonerating himself. The
E
duty is said to be necessary to remedy the inequality of
resources between the prosecution and defence, and the
principle applies equally to material which might
undermine the credibility of a prosecution witness".
I ought for completion to go to 4.72:
F
"Whilst the European Court of Human Rights has made it
clear in the
Edwards -v- United Kingdom decision, and in a
string of subsequent cases, that article 6 generally requires
the prosecution to disclose to the defence all material
evidence for or against an accused, nevertheless, it is also
clear that the entitlement to disclosure of relevant evidence
G
is not an absolute right. In
Van Mechelen -v- Netherlands
the court adopted a principle of 'strict necessity' in this
regard; one which permits on necessity grounds some
non-disclosure of otherwise disclosable material.
Justifications which have been accepted as falling within
this include national security, the protection of vulnerable
witnesses and the keeping secret of police methods of
H
investigation. Clearly this principle is analogous to our
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domestic doctrine of public interest immunity. So far as
European Court of Human Rights is concerned, in
Fitt -v-
United Kingdom the court held that the ex parte system did
not contravene the defendant's right to a fair trial",
and I think that is a reference to whereby the prosecution go on its own to a judge to get
permission not to disclose material.
B
In my submission here, sir, there is nothing along those sorts of lines which would justify
the Council in refusing to disclose the sort of material that has been sought from it on
behalf of the Defence in the context of this abuse application. No reason has been given
except that, as I understand it, it is a wrong procedural route that I am embarking on, but
that in my submission does not begin to give any defence for the non-disclosure of what
may be relevant material.
C
In my submission the non-disclosure here is serious, it is substantial and on those grounds
alone a separate abuse exists which would justify on the balance of probabilities this
Committee ordering a stay. Again, I confine that submission in relation to the first six
charges. The last two charges would fall outside the bounds of that submission.
And finally, sir, can I come to a last separate alternative submission which I flagged up
D
on the first day of this hearing which is a submission in relation to Head of Charge 2 only.
This is the case you will recall in relation to Patient A, sir, in which the parents of the
child patient concerned have expressly refused consent to the disclosure of their child's
notes.
The nature of the charge, as you can see, is a failure properly to monitor the patient once
those prescriptions which are listed there had been made and that there was irresponsible
E
monitoring in the way set out there.
The nature of the defence to the charge as currently given by Dr Cosgrove, I hope my
learned friend does not mind my putting in a document that he has kindly provided me
with this morning. Well I am not sure I need put it in and I am not sure whether he
intends to put it in, but it is a response to the Rule 6 letter, dated 13 November 2002, and
it deals with the original Head of Charge that was communicated to the Doctor in the
F
Rule 6 letter. I do not think it has been substantively altered between that and its
appearance in the Notice of Inquiry before this Committee.
It states that:
"It is admitted that by May 1999 Dr Cosgrove prescribed
G
Risperidone and clonidine to the Patient DB to be taken
with 130 mgs of Ritalin daily",
and it goes on to say:
"Dr Cosgrove strenuously rejects any suggestion that his
prescribing for the patient was irresponsible or
H
inappropriate. Dr Cosgrove was in regular communication
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with Dr Holmes, Consultant Community Paediatrician at
Salisbury, who was doing the monitoring of DB on behalf
of Dr Cosgrove who was consulting in Bristol. The GP
knew that Dr Holmes was monitoring DB".
I think it would be fair to say that that version of events is challenged by Dr Holmes in
the Witness Statement he has made in relation to this matter.
B
My submission is that the Doctor is fatally hamstrung in not being able to refer and have
access to the patient's notes in order to assist him in mounting that defence, because it
would obviously be appropriate and helpful in asserting that he had properly monitored
this patient to have access to, not only Dr Holmes' notes, but be allowed to deploy his
own private notes and indeed to have access to the patient's General Practitioner Notes.
That is a flaw which, if it is not subject to remedy, in my submission makes it unfair and
C
again an abuse that the Committee should proceed to hear that particular case.
I am sorry that I have been so long in developing those submissions, sir, but those are the
submissions I make on behalf of Dr Cosgrove.
THE LEGAL ASSESSOR: Mr Morris, could I ask you a couple of questions that have
D
arisen? In the course of your submission on legitimate expectation you referred to the
delays that had occurred.
MR MORRIS: Yes.
THE LEGAL ASSESSOR: Do you want to say anything to the Committee on Dr
Cosgrove’s right under article 6 to have a trial in a reasonable period of time?
E
MR MORRIS: I am not advancing a submission that there is abuse arising out of delay.
There has been delay here, but the criteria for establishing abuse purely as a result of
delay are ones I do not seek to meet on behalf of Dr Cosgrove.
One of the matters that needs to be established in order to cite delay as a reason for
staying a hearing is that the doctor has thereby been prejudiced, and this is whether it
F
comes under article 6 or the common law by virtue of the delay. Clearly, there is an
element of prejudice here for two reasons, firstly, the lapse of time and the failure of
memory that that inevitably causes, but, secondly, and perhaps more importantly in the
context of this case, is that there was delay between the time when he was either told that
he was not going to be subject to disciplinary procedures in relation to three of the cases
or between the arising of the legitimate expectation he was not going to be dealt with by
G
way of disciplinary or any other proceedings, inasmuch as, once those promises had been
made or that expectation had arisen, he was entitled, and did to some extent, to sit back
and not to commence the preparation of any defence to any disciplinary charge.
THE LEGAL ASSESSOR: The other point is the burden of proof. The burden is on you.
The standard of proof is the balance of probabilities?
H
MR MORRIS: Yes.
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THE LEGAL ASSESSOR: Can I make sure I have understood your argument on a
particular point correctly? As a free standing challenge you are saying, in relation to the
counts where there has been an express communication saying that the count will be dealt
with under the performance procedures, that it is an abuse of process to go back on that
express communication.
B
MR MORRIS: Yes.
THE LEGAL ASSESSOR: Have I understood you correctly that that stands separately
from the general abuse argument that you have mounted, that the breach of the letters
which say that charges are going to be dealt with under the performance procedures go to
show that the whole prosecution is an abuse?
C
MR MORRIS: Yes. That is separate from those matters contributing to what I would
call the index or indices of suspicion in relation to the effect of head of charge 6.
THE LEGAL ASSESSOR: I am just checking here, rather than making any assertion.
This is the second category of breach of promise where there has been an express
communication. As I understand it, it is charge 9, charge 7 and charge 3.
D
MR MORRIS: In 3, 7 and 9 there were express promises that they would go to
performance.
THE CHAIRMAN: These were the category 2 charges.
MR MORRIS: That is right, but equally in relation to my breach of promise argument is
the other category where a legitimate expectation arose, in my submission. Those are
E
heads of charge 2, 6 and 4.
THE LEGAL ASSESSOR: Do you have any authority which relates directly to the GMC
procedures? I understand you have authorities which relate to the criminal jurisdiction.
Do you have any authorities which relate to the specific jurisdiction?
MR MORRIS: No, I do not.
F
THE LEGAL ASSESSOR: Can I say that I cannot think of its name, but I am aware of
an authority which says that the GMC, or I have read an authority whose name I cannot
now recall, but it was reported in the last eighteen months to two years, which says that
the GMC is under a duty corresponding to the duties placed on the prosecution in a
criminal trial?
G
MR MORRIS: I am not aware of it.
THE LEGAL ASSESSOR: I cannot remember its name, but it was reported in the Times
Law Reports, certainly within the last two years. I remember noting it, that there is an
express statement that the GMC, as the prosecuting body, is under a similar duty to that
which the Crown Prosecution Service would be under vis a vis disclosure.
H
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THE CHAIRMAN: In the absence of that authority, would it not be incorrect to take this
into account at the present time?
THE LEGAL ASSESSOR: This is what I am canvassing with learned Counsel.
MR MORRIS: I will certainly see if I can dig anything up over the adjournment on that.
I have always rather assumed that that is the approach that has been taken by all Conduct
B
Committees and it really arises out of rule 50, dealing with the receipt of evidence, which
makes specific reference to the receipt of evidence admissible in criminal proceedings,
allied with the fact that the nature and procedure of Conduct Committees is clearly
disciplinary. The burden is on the Council. The standard of proof is the criminal
standard of proof. For that reason, the approach in criminal courts is analogous and
useful and authoritative in guiding the Conduct Committee.
C
THE LEGAL ASSESSOR: Perhaps I can summarise it by saying I believe there is an
authority which expressly says that.
THE CHAIRMAN: Thank you very much. It is now nearly one o’clock.
MR PEARCE: Sir, I was going to rise to say that my learned friend’s very detailed
submissions referring to a large number of documents, some of which we have seen
D
before, some of which I have and you have and some of which I have not seen before,
clearly will require some detailed response by me. I had anticipated many of the lines he
was going down. I have to say I had not anticipated all of them. If come, let us say, two
o’clock I am close to but not ready to start, which I fear may be the position, I wonder
whether you would grant me an indulgence. I am not suggesting this will take a very
long period of time, but I do feel an hour might be a little tight.
E
THE CHAIRMAN: I can see no objection to that. We will agree to it. The panel will
rise. We will reconvene at two o’clock or shortly thereafter.
(
The Committee adjourned for lunch)
THE CHAIRMAN: I assume you have nothing further to say just now.
F
MR MORRIS: I have not, sir.
THE CHAIRMAN: Mr Pearce.
MR PEARCE: Sir, my submissions this afternoon are intended to persuade you that the
application to stay these proceedings on the grounds of abuse of process, whether in
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whole or in part, is misconceived, that the facts and matters drawn to your attention by
my learned friend provide no proper basis for staying these proceedings on the grounds of
abuse, again whether in whole or in part, and, in addition, to seek to persuade you that,
insofar as it is relevant to your determinations, the GMC has behaved properly throughout
this case in its obligation to disclose relevant documentation.
In so submitting to you I seek to deal with matters in the same order as my learned friend,
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I anticipate, although I am often proved wrong, rather more briefly than my learned
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friend. That is not to criticise his length, but to indicate to you that I will not, in the
course of my submissions, need to deal with matters, in particular in respect of the
Church of Scientology, but also to some extent in respect of the history of the various
complaints and charges in the notice of inquiry, at quite the same length as my learned
friend has done.
May I then turn specifically to what I understand to be the first of my learned friend’s
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submission? That is the submission that charge 6 is a fraud, for want of a better way of
putting it, and that, it being a fraud, that taints the entirety of the rest of the charges before
you. As I have submitted before, and I think as is clear, the suggestion that this is a fraud
really amounts to one of two alternative positions on behalf of Dr Cosgrove. The first is
that Mrs D is indeed the mother of a child, D, and presumably the mother of a child who
was treated by Dr Cosgrove, but that she does not genuinely instigate the complaint that
appears in charge 6, or, in the alternative, that if she does genuinely instigate that
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complaint, she is not genuinely the mother of child D.
The logic of this seems to us to be one of two things: either that the person who gave
evidence last Wednesday, being the true mother of child D, but not being the genuine
complainant, lied in adopting the complaint that is put in that letter of complaint. In other
words, although she was not genuine when she started the complaint, she does now
complain against Dr Cosgrove. She is part of some conspiracy, therefore, against Dr
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Cosgrove, whatever the reasons for the complaint being instigated in the first place. That,
put simply, we submit is madness.
Alternatively, she is lying when she says that she is the genuine mother of D and in
describing his health. Sir, you heard me re-examine Mrs D on issues relating to her son’s
medical history. I seek to put before you as an exhibit on behalf of the Council a bundle
of medical records. This is the bundle. (
Same handed) I have not photocopied them,
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either in whole or in part, because there is a large number of documents. I seek to invite
you to look at ten specific documents that I have flagged up with Post-it notes, but at the
same time invite you to bear in mind the entirety of any documentation that you may see
within these medical records. It is not necessary for my submissions for me to go into
detail that infringes any issues of confidentiality here. The point can simply be made, in
my submission, that if you look at these records, look at simply those ten flagged
documents or any other documents you choose to look at, but the ten flagged documents,
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I submit, make the point very straightforwardly, it is clear, firstly, that when she gave
evidence Mrs D knew a great deal about the medical history of the child who is described
here.
It is clear, secondly, that the child to whom these medical notes relate was diagnosed as
suffering from ADHD. It is clear, thirdly, that this child was treated by Dr Cosgrove. I
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submit those are points that can be made simply by reading the ten flagged documents,
but would be confirmed by further reading of the file from beginning to end if you chose
so to do. I produce that bundle to the Committee. As I say, I apologise for it being in
original form but it seemed more sensible than any other route. I think that is C5.
THE CHAIRMAN: It would be C5. I think we could look at that when we go into
camera.
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MR PEARCE: Precisely so, sir. I think that would be sensible.
MR MORRIS: For my assistance, I do not suppose the original bundle is paginated.
MR PEARCE: It is not. Would it assist if I had those ten marked documents
photocopied? I did not do it in advance because I did not want it to seem as though we
are selectively taking documents out of a body of medical records. We say they are only
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illustrative. If my learned friend wishes those ten documents, certainly…
MR MORRIS: The problem is I have not had a chance to look at these ten documents. I
do not know which have been flagged up.
THE CHAIRMAN: It would be only proper that Mr Morris should see that. The two
options are that we allow you a few minutes just now or we get them photocopied.
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MR MORRIS: I certainly do not want to interrupt my learned friend. I suggest we
proceed and they could be photocopied and I can look at them in due course.
THE CHAIRMAN: They should be photocopied. I do not think that should hold us up.
MR PEARCE: No, I think not, sir.
D
In my submission it will be abundantly apparent to you, if it was not from her evidence
last Wednesday, that the person who gave evidence is, indeed, truly the mother of a child
who had ADHD and who was treated by Dr Cosgrove. What is the attack upon that? Sir,
I will not labour the point about the handwriting evidence. The point there is abundantly
clear. Mrs Marsh quite rightly conceded, having originally suspected that there was a
difference in writing between various signatures, she quite rightly conceded on seeing a
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larger number of documents that there were similarities – similarities not just sufficient to
make her retract the original opinion that on balance she thought the documents were not
signed by the same person, but, as it were, to swing the other way and to say that on
balance she thought they were. You have copies of the signatures. If you wish to be –
and I say so with respect – amateur handwriting experts, you may do so and look at them
but you do not think that you need any more than Mrs Marsh’s evidence to be convinced
that the entirety of those documents were, indeed, signed by one and the same person.
F
Sir, that for the moment is to make submissions relating only to evidence independently
of Mrs D, but what of Mrs D herself? You heard her give evidence. You may think that
she was honest and convincing in what she had to say and that at no point in seeking to
cross-examine her did she behave in a manner in Mr Morris’s cross-examination that
would suggest to you that she was anything other than a straightforward and honest
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witness who appeared before you.
My learned friend has, I think, identified four points today that may cast doubt upon her
honesty or genuineness. The first is the confusion between Bath and Bristol. Well, you
heard what Mrs D had to say about that. I cannot put it any more vividly than she did.
She said she was not good at geography. I do not dispute my learned friend’s contention
that Bath and Bristol are different cities. However, in my submission, geographically
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close, perhaps for someone who does not know that area at all and then a confusion as to
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where she may have gone, perhaps encouraged by documents, some naming the Bristol
Priority Clinic, some naming an address in Bath. Who knows? You may think her
explanation for that was thoroughly convincing.
Secondly, sir the confusion between a hospital and a clinic. Well, I ask you to consider
whether that is in any sense a meaningful confusion that casts any doubt upon her
genuineness or honesty.
B
Thirdly, the variable spelling of the surname. That does undoubtedly raise a question in
one’s mind. Most of us, I venture to suggest, spell our surnames consistently one way or
another, but bear in mind here for a moment what Mrs Marsh had to say in her evidence.
She said that signatures signed with the “p” and without the “p” are both, in her opinion,
signed by the same person.
C
If Mrs Marsh is right, there is someone out there – and presumably it was the Mrs D who
was before us but there is somebody out there – who alternately spells their signature
with or without the letter “p”. If that be so – and Mrs D says to you firmly, “Yes, they are
all my signature” – if that be so, then it may not for a moment matter why she spells her
name differently in different circumstances. She gave you an explanation – “It depends
how other people address me, it depends on the document.” Whatever the explanation
was, you may think that does not in any way, shape or form undermine her honesty or
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genuineness before you.
You might also bear in mind that on this point as well as the handwriting evidence, the
various documents from which those signatures are drawn all again clearly relate to the
same person and the same mother, so again there is independent evidence from Mrs D
that the same person is signing the signature but in different ways.
E
The fourth point is that the letter of complaint dated 18 August 2000 that you have seen is
unsigned. Well, I hear what my learned friend has to say about that point. Signed or not,
it is a document that Mrs D has adopted before this Committee and you may think that
there is no basis whatsoever for any suggestion that that was not genuinely intended to be
her witness evidence and genuinely signed on that basis.
Her evidence was detailed. It was detailed in terms of the circumstances of the
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consultation, it was detailed in terms of her son’s condition, it was unshaken by cross-
examination.
Document C1 – that is the document, if you recall, that was signed by Dr Cosgrove and
Dr Bramble relating to Risperidone. That was a document that Mrs D said had come into
her possession. How does it come into her possession unless she is genuinely a mother of
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a child treated by Dr Cosgrove?
Frankly, sir, if Mrs D is not genuinely who she says she is, why does she come to this
Committee to lie? Why does she put herself in this situation? I suspect at this stage one
moves on to the second area of my learned friend’s submissions on this first point, which
is the role of the Church of Scientology and the Citizens Commission on Human Rights
and Mr Daniels. Implicit, I suspect, in the submission, is that Mrs D, if she is a fraud, is a
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fraud because of her allegiance to or sympathy with the Church of Scientology. You
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heard her deny being a scientologist and you heard the terms in which she denied it –
baptised, taken first Holy Communion in the Roman Catholic Church, married in Chapel.
You may think again that evidence rang true and was forceful evidence, but that, I
suppose, does not of itself mean that she could not have sympathy with the Church of
Scientology or its aims.
At this point I want to address you on the documentation about the Church and the
B
Citizens Commission that has been produced. In this respect I start off by repeating
submissions that I made to you earlier. I neither accept nor reject the accuracy of
anything stated in the Foster report. I see the contents of other documents that clearly
come from the Church or from the Commission, that have been provided. One can see
what is said there. Whether what is contained in it is accurate or not is another matter but,
for my submission, not one that you have to consider.
C
It is right that you ought to consider, sir, that the Church of Scientology, at least in
respect of some of its practices, has what you may think are perfectly respectable
defenders as well as critics. You heard from Mrs D herself in that regard saying in that
in one area – that is to say psychiatric treatment – she shared views with the Church. One
of your members had some sympathetic views towards one aspect of an organisation
associated with the church. That may simply suggest, sir, that there is a range of opinion.
How can you begin to judge that?
D
How can you begin to say – and this is at the core, as I see it, of my learned friend’s
submissions – how can you begin to say that this prosecution must be tainted because the
kind of thing that the Church of Scientology would do would be to put up a false
complainant, to encourage false complaints, to orchestrate campaigns against
psychiatrists? Even if they do orchestrate complaints against psychiatrists, where is the
evidence of any orchestration by them in this case?
E
Indeed, one of the points that may have struck you very forcefully from all of the
documentation that has been disclosed to you, is that the Citizens Commission on Human
Rights is only alleged to have been involved in one of a series of complaints. If this was
truly an orchestrated campaign, then how come, you may think, there is no evidence of
any involvement by the Church, by the commission, by Mr Daniels, on any of those other
complaints? That, in my submission, goes strongly to suggest that there is no
F
orchestration by the Church of Scientology.
Sir, on Monday of last week it was being suggested that the lack of progress in the
complaints against Dr Cosgrove until mid to late 2002, followed by a sudden flurry of
activity, was quite possibly if not probably the consequence of communication from the
Church of Scientology that had the effect of stirring the GMC into action. You are aware
G
– and my learned friend has made reference to it on at least two occasions now – that he
has seen a bundle of correspondence and some of it is now before you because it has
other relevance in the case – and a bundle of documentation that leads him to make the
concession, as I understand it, that there is no evidence of a letter from the Church of
Scientology that in fact stirred our side of the process into action in 2002.
I will if I may, sir, refer to another of the documents that came into existence at or around
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that time. It is not one that is currently before you. It is a memorandum of 5 September
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2002.
THE CHAIRMAN: This will now be C6.
MR PEARCE: I am obliged, sir. Sir, if I may read this for the purpose of the record. It
is a memorandum from a Mr Peter Lynn to Dr Malcolm Lewis. Paragraph1:
B
“I should say at the outset that the office needs to apologise for the delays
that have occurred in the handling of this series of cases. You last
screened cases relating to Dr Cosgrove in February of this year (please
see your note flagged C) and the oldest case in these files dates from
1997. I have placed the latest memos about all the cases on top of the
first file. I have picked this up following Ann O’Sullivan going on sick
leave and, unfortunately, Ann is the person who knows about the history.
C
1a
One of the difficulties here has been that information has
continued to come in about Dr Cosgrove and additionally the case has
been passed around a number of caseworkers, went to performance and
then came back to screening. In any event, these cases form part of the
backlog that we are committed to clearing by the end of this month.
Following my arrival in screening, this was a doctor I discussed
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prioritising with Ann but as you will see from my memo of 16 August
2002, below, Ann went on sick leave that week and will not be back until
October. I have therefore taken over the case and moved it on by
consulting our in-house solicitor, Peter Steel. The short summary of his
advice is in the e-mail immediately below this memo but Peter has, very
helpfully, reviewed the files and drafted rule 6 allegations. They are at
the end of this tag.”
E
You will recall that that e-mail is a document we have seen already, I should say, sir.
“The allegations were drafted on the basis of the following ten files”
and then numbers are there listed. Turning on to the next page:
F
“We additionally have yet another case, 2002/1616. Peter Steel did not
receive this file and it was recently passed to me by Seaton Giles, in light
of the previous cases. I agreed with Seaton that we would link this with
the other files. I have drafted an allegation in relation to the referral from
Dr M about seeing JR without a proper referral from a GP – which Dr M
specifically raises as an issue. I would be grateful for your views on this
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complaint and whether you feel this in itself raises an issue of SPM.
There is no specific provision in GMP. I would be grateful for your
comments also on the practice of making out specimen prescriptions to
be then prescribed on the NHS. Can this be regarded as acceptable
practice? It sounds very questionable to me and I have drafted an
allegation for consideration. In relation to JE, I think there is insufficient
information as we have no medical records, specific dates and,
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importantly, the events occurred six years ago. I therefore do not suggest
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considering PPC on those matters, although if you want to pursue them
separately we could do so. I should say that at that stage the PPC could
initiate further investigation if they thought it appropriate.
4.
Again, I am sorry to be presenting these cases in this way at this
stage. However, Peter Steel has done a lot of work to focus on the
allegations and I think we are ready to move to the PPC on the cases you
B
previously screened and for you to consider everything else.
5.
After initially reviewing these files, please give me a call if you
wish to discuss before reaching a decision.
6.
I hope you will excuse my audacity in requesting that you look at
these files and return them to us as soon as you can, given that we are
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committed to getting a screening decision regarding PPC before the end
of September.
7.
Again, if you wish to discuss any aspect of these cases at any
stage, please ring me.”
Signed, you may think, “Peter Lynn” and below that you may think there is a handwritten
D
note that starts off “Medical Screener” and I think is rather difficult to read but you may
think is signed “Malcolm Lewis”. I leave that to you to consider.
What is clear from that memo - which I have read in full because it does give us
information that has not previously been available – is explanations being proffered for
delay in this case and apologies in that regard, as well as explaining the on-going process
at that stage.
E
Amongst other things that memo, in my submission, clearly gives the lie to any
suggesting that it was activity by the Church of Scientology or the Citizens Commission
or Mr Daniels that led to a sudden flurry of activity in later 2002.
Sir, those submissions deal in principle with the respects in which the veracity or
genuineness of Charge 6 is attacked, but my learned friend then seeks to raise the indices
F
of suspicion, as he puts it, by raising certain other specific points and it is to those I turn
now.
The first is that it is said that there was a delay of 21 months in the GMC responding to an
enquiry from the MPS about Mrs D and her signature. The relevant documents you have
already been referred to are D18 and D19 and I accept the time scale as put there.
G
However, what that submission does not take account of is some other correspondence on
this issue and that I will refer to you because it is some time, I think, since you have
looked at it. It is in D4.
D4 comprises three documents that were produced for handwriting purposes but as it
happens the second one relates to this issue. The second document there is a letter dated
21 June 22001 from Mrs D, addressed to a person at the Fitness to Practise Directorate of
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the GMC.
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“Mr Brian Daniels of the Citizens Commission on Human rights has
contacted me after speaking with you on Tuesday morning. He has
informed me that the procurement of my son’s medical records have been
delayed due to a possible confusion over names. In reviewing my
previous letters to the GMC, I have spelt my surname”
B
and she gives one spelling with a “p” and then she says
“as opposed to”
and she gives another spelling without a “p”.
“This may have caused some confusion for Dr Cosgrove so I felt I should
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write to provide you with evidence to confirm the correct spelling. I have
enclosed a copy of my driving licence as proof of my surname. I hope
that this will resolve any misunderstandings.”
Now that letter dated 21 June 2001 falls what – some four, five months after the letter
from the Medical Protection Society at D18 raising this issue and significantly more than
a year before the response of the GMC. So, any delay that there may have been – and I
D
am not seeking to defend a 21 month delay in replying to a letter – whatever the
explanation is, it is not that this is a matter that went to sleep. On the contrary, the GMC
raised an enquiry about the very point that is being raised on the part of Dr Cosgrove.
In what sense does that delay in responding to the letter suggest that in some way there
should be a higher suspicion about the genuineness of Charge 6? In my submission, not
at all. On the contrary, the point was raised with Mrs D and she responded to it.
E
You might note the reference to Mr Daniels in that letter. Conspiracy theorists might say
that this is yet another example of Mr Daniels or the Commission orchestrating
complaints. Others might say that Mr Daniels clearly had an interest in these proceedings
and a concern about the complaint in relation to Dr Cosgrove and that he was sufficiently
concerned to be involved in it, to be assisting Mrs D, to be communicating with her as
well as the GMC. What it does not suggest in any way, shape or form is any orchestration
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on his behalf.
The second area in which we are said or you are invited to have a higher degree of
suspicion relates to an article in the Bath Chronicle on 20 September 2002 and a Press
Release leading to it, those being D20 and I have not written on it but I think it must be
D21, I take it, the article. Yes, D21 is the article respectively. And the point is made
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perfectly accurately that the article, and therefore presumably the Press Release precede
the Rule 6 letter.
That is perfectly consistent with Mr Daniels, or the Citizens Commission on Human
Rights, enquiring about the state of matters relating to Dr Cosgrove and putting out a
Press Release that they understand that that represents the position. It does not, in my
submission, in any way suggest that there is orchestration going on, that the Commission
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is attempting to apply undue, unfair or wrong impression on the GMC. I do not dispute
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that the Commission has a position - has a stance - on this. I do dispute that there is any
evidence to suggest that its stance or position has unduly influenced the GMC in the
prosecution of this case.
The third area in which it is said we should have a higher level of suspicion is the breach
of promise or the denial of a reasonable expectation in respect of how certain charges
were to be dealt with.
B
Now, sir, a little like my learned friend in his submissions, I will deal with this point now.
In many ways what I have to say simply needs to be repeated in due course when we get
to the freestanding abuse arguments relating to this, but I deal with it now because it fits
in neatly to this stage of the submissions.
Sir, the remarkable point - and, in my submission, it is remarkable - about this area of my
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learned friend's submissions is that it was raised for the first time today. It was not even,
in my submission, raised last Friday. If you have any doubt about that then I invite you to
look at the transcript for last Friday, and in particular Page 3 and the paragraph at letter
capital E, for the indication that this was not how the case was being put then.
I would read the relevant paragraph if I had not misplaced that day's transcript. Yes, Page
3, paragraph E:
D
"There is a suggestion in the various memoranda that went
to and fro within the GMC about this decision ..." (That is
the decision to go down the Conduct route) "... that that
decision could be justified on the basis that further
information had come to light about Dr Cosgrove.
However, on the face of the documentation that I have all
E
the complaints date from 1999, 2000 or earlier and it does
not appear to me that there was any further fresh
information that would justify the Council in deciding to
take a wholly different approach to the treatment of this
information and complaints.
If that is right, it would, in my submission, amount to an
F
unfair use of the investigate ..." (and I think it may be
investigative) "... powers of the General Medical Council
and would amount to an abuse, which I would seek to lay
before you".
Now, if my learned friend's submissions are correct, then what has happened here is that
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Dr Cosgrove has been led to a belief either in respect of some charges that no action
would be taken at all, or in respect of other charges that the action that would be taken
was in respect of Performance. And that therefore when he received a Rule 6 letter
raising various allegations of misconduct he would, you may think, if he had been in any
way whatsoever misled, deceived, led up the garden path -- he would, you may think,
have been frankly up in arms. You may think that if there was any legitimate complaint
about the change between professional disciplinary proceedings along the Performance
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route to those along the Conduct route, you may think that he would then and there have
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been shouting from the rooftops in complaint about what was going on. But, no, no such
complaint was raised. No such complaint was raised then, at the beginning of these
proceedings last Monday or, indeed, in my submission on Friday of last week.
The point is quite simply this. Matters come to light in the course of documents that, in
my submission, appear to give the Doctor a technical argument against us that we cannot
explain a change in decision-making and that it is sought to use those matters in order to
B
persuade you to stay these proceedings as an abuse of process. But the very fact that
never before until this stage were these points raised is the best indication you might want
that there has never been any misleading of Dr Cosgrove. There has never been a
suggestion in which he has felt unfairly treated in the fact that proceedings were
originally, it is being suggested, not going to be proceeded with and then there was a
change of mind, or were going to be proceeded with down the Performance route and
then it became the Conduct route. Dr Cosgrove has never felt at a disadvantage,
C
prejudiced or unfairly treated because of that. If he had, the point would have been raised
in my submission. This is a last minute point that arises out of seeing certain
documentation.
And even then, sir, the documentation does not give Dr Cosgrove the argument. The
argument arises out of the fact that he was originally told, "Either nothing or
Performance" and then in 2002 he was told "Conduct". Nothing in any of that
D
documentation that you have now got makes him any the more misled as to what the true
position was. Nothing in that documentation that you have now seen gives rise to some
greater expectation than he can possibly have had in the past. What matters is what was
his expectation, let us say, on the evening before he receives his Rule 6 letter? Did he
then feel he had had the promise or the expectation? How had he been treated? Yet, this
complaint is not raised.
E
Now in that memorandum of 5 September 2002, C6, you will have noted, sir, when I read
through it, that at the top of the second page there is a reference to a case 2002/1616; a
case passed on by Seaton Giles. It is clear to say from that, sir, that at the time of that
letter there was indeed new information available in Allegation 2002.
Look at D22, the substantial bundle of documents relating to the process at this time, and
in particular that table of open cases - the open cases list it is called that appears there.
F
On the second page of the table, the last complaint: "2002/1505 01 Home Office 02 West
Yorks Police". So, again there is new information available at that stage.
And, indeed, you will have noted that throughout the memoranda that are to-ing and fro-
ing at this stage there is reference to information coming in and it being considered. So,
it is not right to suggest on the face of this documentation that there was no new
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information in 2002, or at least later on in 2002.
But let us actually turn to the merits of this abuse point. I have said already that if this
was a good point it would have been raised a long time ago, but what actually is being
said? Well, in the legitimate expectation cases it is being said that such time had passed
that Dr Cosgrove could and presumably did legitimately think that those cases were not
going to be pursued.
H
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I have raised already the suggestion that if he genuinely thought that he might have said it
a long time before today, but more to the point what is it in the passage of time at this
stage that would have led him to that conclusion? It is quite apparent that there was a
period with relative inactivity, and I do not defend that as I have said already, but equally
from time to time there were periods with flurries of activity with letters being sent
including, you will have seen, contact with Dr Cosgrove.
B
So, where does this suggestion of legitimate expectation arise? Where does it come from?
Simply that passage of time? In my submission there is nothing in that to give rise to
such an expectation, nor as far as I am aware nothing in any of the authorities to suggest
that the mere passage of time - even very lengthy passage of time - will be held to give
rise to such expectation.
That is the legitimate expectation point, sir, and then the other group - the promise group.
C
Now if I follow my learned friend's submissions correctly on this group of cases, what he
is saying is not so much that the Doctor was promised the case would go down the
Performance route, but that implicit in that promise is that it would not go down the
Conduct route because that is the real complaint, is it not? That it has gone down the
Conduct route when presumably it is being said it should not have done so and that,
therefore, presumably that promise is implicit in the promise that it goes down the
Performance route.
D
Well, where is the promise? There is no such promise. There is a referral to Performance
Procedures. There is nothing, in my submission, in the Act or the Rules that prevents a
case being sent down Performance Procedures and then a further decision being taken to
refer that case to a Conduct case.
It may well be that it would be oppressive on an individual doctor to do that. It may be
E
that it would be very rare for a case to start going down one route and to change to
another route. I am instructed that it does happen in some cases, but more to the point
and more significantly for your considerations there is in my submission nothing in the
Rules to prevent that happening. There is nothing in the correspondence with Dr
Cosgrove to indicate that he was given any guarantee, promise, or call it what you will
that this case would not be dealt with by Conduct Procedures.
F
Sir, I will return to the significance of the alleged legitimate expectations or promises
when I deal with those as freestanding allegations of an abuse of process, but the question
for the moment - because we are still dealing with Charge 6 and the level of suspicion on
Charge 6 - is where does this take us? Where does this change of decision as to how the
professional disciplinary matters are to be taken to, how does that lead to a greater degree
of suspicion about the motivation of the prosecution?
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You have laid bare before you a series of memoranda and screening decisions and such
like. Where is the suggestion from any of those documents that there has been some
impropriety, some manipulation, some bad faith?
And it is significant to note the way my learned friend puts his case on this point because,
when he has spoken of bad faith and manipulation and such like, he has been clear in his
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submissions in saying that he is not making that allegation against the GMC. He makes
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that allegation against the Citizens Commission, possibly the Church, possibly Mrs D, but
he does not make that allegation against the GMC other than to suggest that the GMC is
the unwitting victim of manipulation by others.
Well, where does this change from Performance to Conduct fit into that suggestion? How
does that make in any sense the GMC an unwitting victim? An unwitting victim of what?
There is no evidence whatsoever to suggest any undue pressure that has led to that
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change.
Sir, you must bear in mind throughout these submissions a point raised quite rightly, if I
may say so, by your learned Legal Assessor last Monday that the burden of proof lies
upon the Doctor and, of course, he only has to satisfy you on the balance of probabilities.
However, where there is simply no evidence on the point - and there is, in my
submission, no evidence to suggest any manipulation of the GMC, any bad faith or bad
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behaviour on the part of the GMC - then he cannot in my submission come close to
satisfying the burden, even on the balance of probabilities, that there has been some
misconduct that has affected the prosecution process in this case.
Sir, the next area in which my learned friend asks you to have a higher level of suspicion
is in relation to the non-disclosure of documentation. Well I suppose if the
non-disclosure of documentation were to be considered to be relevant to your level of
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suspicion about bad faith, it would have to be implicit in that that whoever has made the
decision not to disclose any further documentation is themselves acting in bad faith, or is
being manipulated by the parties whom I keep mentioning and is a victim - an innocent
perhaps victim - of some other person's manipulation. Well in my submission there is
simply no evidence of that, sir, any more than there is of bad faith or bad conduct in
respect of the decisions as to prosecution.
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My learned friend seeks, as I understand it -- and I am sure I will be corrected if I am
wrong. He seeks documentation essentially relating to the original screening decisions in
certain cases. He says that this documentation is highly relevant. Well, I ask to what is it
highly relevant? It is not that original screening decision that is being attacked here. It
was the later screening decision of Dr Lewis.
It is said that disclosure of these documentations might assist, as I understand it, in the
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submissions relating to abuse. Is it said they will assist in any way in the substantive
issues in the case? In my submission, they could not possibly do so. But even in respect
of the abuse proceedings, sir, when one focuses one's mind on what actually is being
alleged here then screening matters back in 2000/early 2001 are going to have no bearing
whatsoever.
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Sir, those who instruct me and my lay client take their obligations of disclosure seriously,
and I invite you to say that their willingness to co-operate and be reasonable is amply
demonstrated by events last week when first of all we disclosed a quantity of
documentation sought by my learned friend in order to deal with issues of delay, secondly
we willingly produced Mrs D to give evidence before you on the issue of abuse and,
thirdly, when these issues were raised on Friday we did not simply say, "We will not
disclose the documents to you". We considered our position with very great care.
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But, sir, in my submission there must properly be drawn a line somewhere. There is no
basis, in my submission, for suggesting that any of this documentation will in any way
either undermine our case or assist the Doctor's case. These are historic matters. You are
going to be concerned with the substantive issues of what the doctor’s conduct was and
matters relating to that. How someone came to a particular judgment in the past will be
irrelevant to that. Moreover, when you are being asked to judge the issues of abuse that
my learned friend raises, then the basis of that decision making back in 2000 or early
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2001 will help you none the more.
You must bear in mind, in my submission, that the consequence of a finding of abuse of
process and a stay of proceedings is that those who have a legitimate interest in the case,
those who complain and raise allegations and have a legitimate interest in the
proceedings, are denied their opportunity to appear in front of you and to state what they
have to state and make any allegations they have to make.
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Abuse of process arguments, sir, must be considered with very great care, because
precisely what they do is to stop you hearing the case on its merits. They say you should
not even get to that stage and it is with very great care that you should look at any
argument that suggests that you should not in fact hear a case on its merits. Of course
there are circumstances where proceedings properly can be stayed, but this comes
nowhere near that level, in my submission.
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Finally, dealing with the issue of disclosure at this stage, when my learned friend in his
submissions was putting forward his argument as to the relevance of documentation, he
indicated that the documents he was seeking – and my note of his words, I hope,
approximately accurately is – “The disclosure of documents may give an avenue for the
doctor to explore which he currently does not know.” Sir, that, in my submission, is
fishing for documentation. That is precisely what parties to litigation may not do. Of
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course we have an obligation to disclose that which is relevant. As I have said already,
we treat that obligation seriously. This is, I regret to say, the mere fishing for
documentation in the hope that something might be there. When you think about what
that hope might be, is the reality here that what is being sought is some suggestion that
the Church of Scientology or the Citizens Commission or Mr Daniels is somewhere
mentioned on some other case and that this proves the conspiracy? Is that what they are
fishing for?
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In my submission, these abuse of process arguments would, if allowed to continue and
continue and continue, on the basis that sooner or later they would seek to find some such
evidence, there is no basis to suggest that some such evidence exists.
Sir, may I at this point turn to the question of the significance of what has been argued in
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respect of charge 6? Insofar as it is suggested that Mrs D is a fraud, then that, you may
think, would give Dr Cosgrove a cast iron defence to those allegations. He could not
possibly be convicted of those allegations in charge 6 because the evidence on which they
were based would simply be dishonest and not such as could possibly persuade you to
find in my favour on those issues. That is what the trial process, the process of you
hearing witnesses on substantive issues is meant to determine. Dr Cosgrove does not
need the protection of an abuse of process argument to prevent that happening. That will
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be dealt with on the evidence at the appropriate time. No. Of course, it is put much more
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broadly on the basis of abuse of process, the tainting, I think it is correct to say, of the
proceedings more generally.
May I refer you, through your learned Legal Assessor, to Archbold paragraph 4-54 and
following? This is a section of Archbold that you have had read out to you at some
length already. There are a large number of cases here cited on abuse of process. It is
fair to say that in most cases abuse of process arguments have failed. In all of those cases
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cited there not a single case of abuse of process has succeeded unless there was evidence
that the defendant’s ability to defend himself was adversely affected by the alleged abuse
of process, or there was conduct by the prosecuting or state authorities that was
manipulative or deprived the defendant of a protection at law. I think there particularly of
cases where people were illegally brought into this country –
Mullen is an example of that
cited at 4-56 – and then subject to trial where, but for them illegally being brought here,
the trial would not and could not have happened.
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There were no cases in that section dealing with the alleged manipulation of authorities
by third parties. That matter is touched upon at another paragraph in Archbold which is
4-63A, again a section to which my learned friend has referred you in the past. There it is
said as follows,
“An abuse of process exists where the plaintiff in civil proceedings is in effective
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control of criminal proceedings against the same defendant to the extent that the
prosecution are unable to exercise independently their prosecutorial duties.”
The case of
Regina v Leominster Magistrates Court, ex parte Aston Manor Brewery is
cited. Effectively it is the same barrister there appearing both to prosecute a case and in
civil cases who thereby had in his possession information, the disclosure of which was
disputed and where the Divisional Court strongly disapproved of the manner in which the
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criminal prosecution was being conducted.
Sir, there is, as I seek to emphasize again and again, no evidence here that the prosecution
process is in any way shape or form tainted by manipulation. It is the most extreme
cases, such as
Regina v Leominster Magistrates Court where the court will stay on those
grounds. May I contrast with that the very strong public interest in these proceedings
going ahead, in respect of which I seek to cite another case to you which does not appear
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in Archbold and which is not in the criminal jurisdiction. There are three authorities I am
going to refer to. I have referred to
Leominster already and I have another two
authorities. I have bundled them together and have copies for everyone. It might be
useful to distribute that now as C7.
THE CHAIRMAN: Yes. (
Same handed)
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MR PEARCE: On the front page of C7 you will see the best report we have of the
decision in
Regina v Leominster Magistrates Court, which is there simply to demonstrate,
we say, the exceptional nature of that particular case. I invite you to look at the second
case here, a Court of Appeal decision,
A Health Authority v X and others [2001] EWCA
Civ 2014. It is also reported, from where this copy comes, in [2001]
Lloyd’s Reps Med 139. If I may read the head note,
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“On the conclusion of public law proceedings under the Children Act the local
authority reported to its area health authority that facts had emerged which it
considered relevant to the discharge of its duties. The health authority applied to
the Court for permission for the local authority to disclose specified case papers,
including two general practitioner records, of two named individuals to it. Munby
J [2001] Lloyd’s Rep Med 349 held that the authority was entitled to disclosure of
the papers, including the judgment in the proceedings, and an order requiring the
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Respondent to produce within seven days the medical records of the two named
patients whose consent to production had been refused or not obtained. In each
case Munby J had held that such disclosure should be subject to express
conditions, including a requirement that the authority would not without the prior
consent of the Court disclose any disclosed document to any person other than a
specified disciplinary body on the ground that the doctor’s duty of confidentiality
included a duty to assert the confidentiality in any answer to a claim by a third
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party to disclosure and to put before the Court every proper argument against
disclosure. The health authority appealed.
Held, dismissing the appeal…”
It is paragraph 1 of the head note I am concerned with at the moment, although I will
return more generally to this case in due course,
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“1.
There is a high public interest analogous to the public interest in the due
administration of criminal justice, in the proper administration of professional
disciplinary proceedings, particularly in the field of medicine…”
Reference is made to paragraph 19. If I take you to paragraph 19 in the judgment, you
will see that that paragraph there appears. What is apparent from this case and from that
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analysis is that the high public interest in professional disciplinary proceedings taking
place means that, in that case, the Court must, whilst balancing its duties in making a
decision, consider very important the fact that the disciplinary proceedings ought, if
appropriate, to take place. If you look at paragraph 20, the part of paragraph 20 which is
marked with a heavy line,
“In those circumstances in my opinion the objection to production fell to be
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decided in accordance with the principle that determined the application for the
release of the list A documents, namely whether the public interest in effective
disciplinary procedures for the investigation and eradication of medical
malpractice outweighed the confidentiality of the records. I do not regard the
application for production much enhanced by the Regulation 36(6) duty. A
balance still had to be struck between competing interests. The balance came
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down in favour of production, as it invariably does, save in exceptional cases.”
You will see this case may have relevance to another part of my learned friend’s
submissions, but at this stage I seek to emphasize to you the importance of professional
disciplinary proceedings taking place and not, as it were, being stymied by arguments that
lack merit. There is no evidence of impropriety on the part of the prosecuting authorities.
There is no evidence of inappropriate control by any body. There is no evidence of any
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abuse in the decision to proceed with charge 6 or, in consequence of that, with the rest of
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the charges.
Sir, that deals at some length with the first part of my learned friend’s submissions, but
makes a lot of the points that I need to make in respect of the remaining charges. May I
deal with the second area and that is the legitimate expectation or breach of promise
argument? I have put my submissions on the circumstances at length and they will be no
better than they are already by me repeating them again. What I do see to refer to is
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certain passages in Archbold on this issue. If I could take your learned Legal Assessor to
paragraph 4-62, and in particular on page 340 halfway down. It is a case called
R v
Horseferry Road Magistrates Court is cited. I apologise that I do not have a copy of the
judgment. We will obtain it if necessary.
“In
R v Horseferry Road Magistrates Court ex parte DPP a prosecution had been
instigated despite an assurance of no prosecution given by the police to the
defendant’s solicitor and after some delay. The Stipendiary Magistrate concluded
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that it would
ipso facto be unfair to try the defendant in such circumstances and
stayed the proceedings. The Divisional Court quashed the stay and remitted the
matter for reconsideration.”
Here we get to the important part of the judgment, in my submission.
“Breach of an assurance not to prosecute cannot
per se justify a stay. The
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situation straddled the two categories of abuse. In such a situation it is incumbent
upon the Court to investigate what, if any, prejudice to the defendant would result
from pursuit of the proceedings, bearing in mind the exceptional circumstances
that must exist before delay can be seen to result in prejudice such as to justify a
stay and the Court must consider whether there are special circumstances
present.”
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As in
R v Croydon Justices ex parte Dean referred to by my learned friend, where special
factors were the defendant’s youthfulness and the assistance he had given subsequent to
the assurance and
R v Bloomfield, the other case referred to by my learned friend, where a
special factor was that the assurance had been given to the Court and would already have
been acted upon for an adjournment to suit the convenience of the prosecution. &nb
