Privy Council Appeal No. 44 of 2001
Dr. Prabha Gupta Appellant
The General Medical Council Respondent
THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
REASONS FOR REPORT OF THE LORDS OF THE
JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE
18th December 2001, Delivered the 21st December 2001
Present at the hearing:-
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
[Delivered by Lord Rodger of Earlsferry]
"1. a On 9 March 1996, Dr R P Gupta was found guilty of serious professional misconduct, and a direction made that his name be erased from the Register. A direction was also made that his registration should be suspended with immediate effect;
b following the lodging, and subsequent withdrawal of an appeal, Dr Gupta's erasure took effect on 25 July 1996, and Dr Gupta has not been registered with the GMC since this date;
2. Dr R P Gupta
a. was in 1996 and is your husband;b. in March 1996 was your partner;
3. you were aware of the matters set out at heads 1 and 2 above;
4. a. between about May 1996 and about December 1998 Dr R P Gupta took part in consultations which you held with various patients who attended your surgery premises at 8 St Kilda Road, Ealing, London W13 9DE, and 59 Rutland Road, Southall, for medical services;
b. you permitted Dr R P Gupta to take part in such consultations;
5. a. between about May 1996 and about December 1998 Dr R P Gupta held consultations with various patients who attended your surgery premises at 8 St Kilda Road, Ealing, London W13 9DE, and 59 Rutland Road, Southall, for medical services;
b. you knew that Dr R P Gupta was holding consultations with patients;
6. a. in or around mid-1997 you were made aware that Dr R P Gupta had recently given an MMR injection to a child;
b. in or about July 1998 you were aware that Dr R P Guptai. had been consulted by Mrs 'A' at the Southall surgery premises;ii. had written a referral letter for Mrs 'A' to Ealing Hospital;
7. a. you permitted Dr R P Gupta to hold consultations with patients at your surgery premises;
As can be seen from heads 1 and 2, the Dr R P Gupta referred to in the charge is the appellant's husband whose name was erased from the register for serious professional misconduct in 1996. The allegations in heads 4, 5, 6 and 7 relate to instances where he was said to have acted as a medical practitioner in the appellant's practice.b. you failed to prevent Dr R P Gupta holding consultations with patients at your surgery premises."
The only other passage in the transcript which gives any indication of the Committee's thinking about the evidence on the facts is to be found in its determination on the sanction to be imposed. When addressing the appellant, the Chairman said, "Your evidence to this Committee was inconsistent and by reason of our determination untruthful in many respects"."Dr Gupta, having carefully considered all the evidence, the Committee have made the following findings of fact in your case. Heads 1, 2 and 3 of the charge have been admitted and found proved. Heads 4(a) and 4(b) have not been found proved. Heads 5(a) and 5(b) have been found proved. Heads 6(a), 6(b)(i) and 6(b)(ii) have been found proved. Heads 7(a) and (b) have been found proved."
"it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases.
In that passage their Lordships affirmed the existence of a duty to give a general explanation for the Committee's decisions on questions of serious professional misconduct and of penalty. By contrast, they rejected the existence of any such duty to give reasons for the Committee's decision on the matters of fact in that case.In the present case the complaint is that reasons should have been given to explain the basis upon which the Committee found against the appellant on the questions of fact raised by head 2(b). It was plain, however, from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the Committee's assessment of the appellant's credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the Committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In these circumstances their Lordships do not consider that it was necessary for reasons for this part of the Committee's decision to be given."
The fact that the Board's jurisdiction is appellate rather than merely supervisory was reaffirmed a few weeks later by the Board, with the same members, in Preiss v General Dental Council  1 WLR 1926. The practitioner appealed, inter alia, on the ground that the allegations which the Professional Conduct Committee of the General Dental Council had found proved did not amount to serious professional misconduct. Giving the judgment of the Board (at p 1935E–1936A in paras 26– 27), Lord Cooke of Thorndon indicated that the relevant provisions of the Dentists Act 1984 appeared manifestly designed to give a full right of appeal to Her Majesty in Council, extending to questions of fact as well as of law and not limited even as to matters of degree or discretion,"Practitioners have a statutory right of appeal to the Board under section 40 of the Medical Act 1983, which does not limit or qualify the right of … appeal or the jurisdiction of the Board in any respect. The Board's jurisdiction is appellate, not supervisory. The appeal is by way of a rehearing in which the Board is fully entitled to substitute its own decision for that of the committee. The fact that the appeal is on paper and that witnesses are not recalled makes it incumbent upon the appellant to demonstrate that some error has occurred in the proceedings before the committee or in its decision, but this is true of most appellate processes."
"though as with most such general appeals the Judicial Committee will have to be satisfied before allowing an appeal that the decision of the PCC has been shown to have been wrong. It would be unusual for the Board to hear oral evidence, and allowance must be made for any advantages that the PCC has derived from seeing and hearing the witnesses; but this does not mean that for the purposes of article 6(1) the Board lacks full jurisdiction over the case.
The Board then proceeded to give its own opinion, differing from the Professional Conduct Committee and finding that one of the failures amounted to serious professional misconduct and that the others did not.27. Since the coming into operation of the Human Rights Act 1998, with its adjuration in section 3 to read and give effect to legislation, so far as it is possible to do so, in a way compatible with the Convention rights, any tendency to read down rights of appeal in disciplinary cases is to be resisted. In Ghosh v General Medical Council  1 WLR 1915, 1923 F – H the Board has recently emphasised that the powers are not as limited as may be suggested by some of the observations which have been made in the past. An instance, on which some reliance was placed for the General Dental Council in the argument of the present appeal, is the observation in Libman v General Medical Council  AC 217, 221, suggesting that findings of a professional disciplinary committee should not be disturbed unless sufficiently out of tune with the evidence to indicate with reasonable certainty that the evidence was misread. That observation has been applied from time to time in the past, but in their Lordships' view it can no longer be taken as definitive. This does not mean that respect will not be accorded to the opinion of a professional tribunal on technical matters. But, as indicated in Ghosh, the appropriate degree of deference will depend on the circumstances."
Their Lordships would adopt the reasoning in this passage in the present context where it applies a fortiori, given the size and composition of the Committee, to which Lord Hope drew attention in Selvanathan. They are accordingly satisfied that there is no general duty on the Committee to give reasons for its decisions on matters of fact and, more particularly, that there is no duty to do so in a case like the present where, as the appellant's solicitor was at pains to emphasise to the Committee, its decision depended essentially on resolving questions of the credibility of the witnesses led before it. The Committee's decision on the individual heads of the charge, when considered in the light of the transcript of the evidence, reveals sufficiently clearly the reasons for its decision. Nothing more was required in this case. It so happens, however, that a further indication of the Committee's reasons could be found in its indication to the appellant in person that it had found her evidence to be untruthful in many respects. That made the position even clearer."Here, the trial judge was faced with an irreconcilable conflict of evidence between the police officers and the defendant, turning on credibility alone. No principles of law were in issue, and there was no discretion to be exercised. The only question was whether the judge believed one set of witnesses or the other. His ruling leaves the answer in no doubt. Simply to announce that he accepted the account given by the officers and the Justice, and found the appellants' story unworthy of credit would not have advanced an appeal. Furthermore, although in cases where reasons are given it is prudent for the judge to say no more than strictly necessary, it is hard to see how a mere summary would have been appropriate in the present case; for there was always the risk that if anything was omitted in the interests of brevity the defendants would argue on appeal that the judge had overlooked it. In practice, he could scarcely stop short of a fully reasoned analysis. Their Lordships can see nothing to recommend such a course, and good reason not to follow it."
In the present case Mr Shaw, who appeared for the respondent Council, accepted that in certain circumstances – which he said would be exceptional - there could indeed be a duty on the Committee to give reasons for its decision on matters of fact. He gave examples of situations in which, he believed, such a duty might arise. He urged the Board to provide guidance to the Committee on this matter. Their Lordships are satisfied that no duty to give reasons arose in this case. That being so, they prefer to leave the questions of the existence of any such exceptional duty to give reasons, and of its scope, to be determined in a case where the point is live."But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons."
Mutatis mutandis the same approach falls to be applied in considering the sanction of erasure imposed by the Committee in this case."The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is part of the price."