When there is no legal superhero to save you,you need to save yourself
All lawyers or litigants have to develop a pre-action protocol if they wish to challenge an authority by judicial review. The GMC is a quasi judicial body. The ruling that the GMC isn't a court was made by the Court of Appeal when the GMC failed to against Panorama. The case is GMC v BBC. The difference between lay people [ in this case doctors] and lawyers is that lawyers have read the law books and I suspect their training makes them much better at analysing the law. There is no reason a doctor cannot read the relevant documents and come up with a relatively good pre-action.
The first website to look at is the Public Law Project. This website has some excellent leaflets etc on Judicial Reviews. It is worth downloading them, reading them and assessing what must be done. The second website to read is the CPR Rules. These are the Civil Procedure Rules which are online. Every court in the land uses these rules and procedures to conduct their cases. Essentially, first there must be a pre-action protocol or Letter of Claim. The aim of this is to see if the two parties can reconcile their difference. Dr B and I both know that this is usually a waste of time when it comes to the GMC because they never listen to rationality or logic. Indeed, they actually don't care whether they follow the rules or not. Nevertheless, a pre-action protocol must be done. If you need to issue a judicial review in court, these are the CPR rules for that. The Royal Courts of Justice are fairly helpful with respect to procedure and forms. Their website is particularly helpful.
There is of course one problem with litigation, the winning party gets to claim the costs. Of course, there are various cases related to your opponents conduct. If you think that judicial review is all about fairness and proper disclosures, it isn't. Your disclosures must be obtained by subject access requests under the Data Protection Act 1998. In my own case, I had to work 10 steps ahead of my lawyers. On each occasion, I obtained the documentation, they didn't. Let that be a lesson to everyone.
Litigating as a litigant in person is hazardous. Nevertheless some doctors have indeed won their cases. The most famous being Saher Sadek who defeated the MPS. Dr S Vaidya recently defeated Toni Smerdon in a application by the GMC to throw his negligence cases out. The key to good litigation is good paperwork, good folders and some basic knowledge of the law. Personally, I dislike the GMC litigation team because they have never played fair. Often, they will ambush you the night before with large bundles of paperwork. That is against the CPR rules for service. In 2004, I discovered 2 large bundles mid hearing which had not been served. At that point, I stopped the ambush, caused an adjournment of the hearing and went home. The GMC litigation team lack in morals, are incable of being honest and the only reason they are not in prison is because the Attorney General and the judges allows them the freedom to decieve. So when you fight the GMC, have no expectation that there is any fairness. Their book of dirty tricks is alive and well. The same tricks are played again and again. They are
1. Fudging the facts
2. Ambushing the litigant
3. Failing to provide the relevant case law to the court.
4. Decieving the court.
5. Character assasinating the opponent.
6. Arguing two lines of argument on one point in two different cases.
Only litigate if you have to. The above has been written as a simple directive for any doctor wishing to challenge the status quo. No one has to be a lawyer to arm themselves with knowledge and logic. Dr B and I did it on our own. And I hate being arrogant but it is possible with a bit of thought to defeat some of the best lawyers just by playing good tactics. The only good thing about being a Litigant in Person is that lawyers don't ruin your case. You have sole control of your destiny in court.
Related Links.
1. GMC Case Law available on Baiili.
2. Blackstones often summarise the GMC case law. Well, they have to do something for the great unwashed as the GMC pays them millions.
3. The GMC's website has the Medical Act, Rules and Procedures. You should also have in your possession, the GMC's investigation manual that is updated every year. This can be obtained via an FOIA request.
The first website to look at is the Public Law Project. This website has some excellent leaflets etc on Judicial Reviews. It is worth downloading them, reading them and assessing what must be done. The second website to read is the CPR Rules. These are the Civil Procedure Rules which are online. Every court in the land uses these rules and procedures to conduct their cases. Essentially, first there must be a pre-action protocol or Letter of Claim. The aim of this is to see if the two parties can reconcile their difference. Dr B and I both know that this is usually a waste of time when it comes to the GMC because they never listen to rationality or logic. Indeed, they actually don't care whether they follow the rules or not. Nevertheless, a pre-action protocol must be done. If you need to issue a judicial review in court, these are the CPR rules for that. The Royal Courts of Justice are fairly helpful with respect to procedure and forms. Their website is particularly helpful.
There is of course one problem with litigation, the winning party gets to claim the costs. Of course, there are various cases related to your opponents conduct. If you think that judicial review is all about fairness and proper disclosures, it isn't. Your disclosures must be obtained by subject access requests under the Data Protection Act 1998. In my own case, I had to work 10 steps ahead of my lawyers. On each occasion, I obtained the documentation, they didn't. Let that be a lesson to everyone.
Litigating as a litigant in person is hazardous. Nevertheless some doctors have indeed won their cases. The most famous being Saher Sadek who defeated the MPS. Dr S Vaidya recently defeated Toni Smerdon in a application by the GMC to throw his negligence cases out. The key to good litigation is good paperwork, good folders and some basic knowledge of the law. Personally, I dislike the GMC litigation team because they have never played fair. Often, they will ambush you the night before with large bundles of paperwork. That is against the CPR rules for service. In 2004, I discovered 2 large bundles mid hearing which had not been served. At that point, I stopped the ambush, caused an adjournment of the hearing and went home. The GMC litigation team lack in morals, are incable of being honest and the only reason they are not in prison is because the Attorney General and the judges allows them the freedom to decieve. So when you fight the GMC, have no expectation that there is any fairness. Their book of dirty tricks is alive and well. The same tricks are played again and again. They are
1. Fudging the facts
2. Ambushing the litigant
3. Failing to provide the relevant case law to the court.
4. Decieving the court.
5. Character assasinating the opponent.
6. Arguing two lines of argument on one point in two different cases.
Only litigate if you have to. The above has been written as a simple directive for any doctor wishing to challenge the status quo. No one has to be a lawyer to arm themselves with knowledge and logic. Dr B and I did it on our own. And I hate being arrogant but it is possible with a bit of thought to defeat some of the best lawyers just by playing good tactics. The only good thing about being a Litigant in Person is that lawyers don't ruin your case. You have sole control of your destiny in court.
Related Links.
1. GMC Case Law available on Baiili.
2. Blackstones often summarise the GMC case law. Well, they have to do something for the great unwashed as the GMC pays them millions.
3. The GMC's website has the Medical Act, Rules and Procedures. You should also have in your possession, the GMC's investigation manual that is updated every year. This can be obtained via an FOIA request.
2 comments:
VERY helpful - your factual posts are great.
You may have a previous post relating to the form of letter needed for DPA and FOIA requests. Many, including some high profile cases, are unaware of the sequence of events that end up with the Information Commissioner. Thanks.
We also may need to develop a protocol for "capability" hearings.
Despite the ruling in Kulkarni which is now under appeal in the Supreme Court, too may doctors are being randomly hit - and have no idea what to do.
Advice about what to do (speak to a colleague who has had one), what not to do (Speak to BMA, defence union, Trust, GMC, NCAS), and where to find a good employment lawyer, are not easily available. I can offer - without naming ithe individual solicitors - Davis & Partners, (Gloucester)and Brachers, (Maidstone) - but we do need a network to cope with the forthcoming "tsunami" of cases.
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