COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
THE HON. MR JUSTICE SILBER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LORD JUSTICE JACOB
| THE QUEEN (ON THE APPLICATION OF JENNIFER CAMPBELL)
|- and -
|THE GENERAL MEDICAL COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Beverley Lang QC and Gerard Clarke (instructed by the General Medical Council) for the Respondents
Crown Copyright ©
Lord Justice Judge:
"28. Circumstances, character, history and pleas in mitigation in cases relating to conduct
(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the chairman shall invite the solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor of the complainant may adduce oral or documentary evidence to support an address under this rule. [emphasis supplied]
(2) The chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid." [emphasis supplied]
"(1) The Committee shall then consider and determine whether, in relation to the facts proved in proceedings under rule 27, and having regard to any evidence adduced or arguments or pleas address to them under rule 28, they find the practitioner to have been guilty of serious professional misconduct. They shall record, and the chairman shall announce their finding.
(2) If the Committee determine that the practitioner has not been guilty of such misconduct, they shall record, and the chairman shall announce, a finding to that effect."
Read literally, rule 29 appears to enjoin the Committee deciding the culpability question to consider not only the proved and admitted facts under rule 27, but also the evidence and submissions advanced under both rule 28(1) and (2). This would not be consistent with the terms of rule 28 itself, and in our judgment requires that the Committee should take proper account of all evidence relevant to the culpability issue when deciding whether serious professional misconduct is proved. Where there is such a finding under rule 30, the Committee can either adjourn to decide what is to be done, or decide what to do there and then. At that stage no further provision is made for submissions in mitigation of penalty.
"(1) The appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision. See Per Lord Radcliffe in Fox v General Medical Council ( 3 All ER at 226,  1 WLR at 1020).
(2) Notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked. The appeal is not by way of re-hearing in the sense that the witnesses are heard afresh or the evidence gone over again (see per Lord Radcliffe). This, amongst other things, means that there is a heavy burden on an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory.
(3) Beyond a bare statement of its findings of fact, the disciplinary committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which an appeal by way of rehearing lies to the Court of Appeal (see per Lord Radcliffe ( 3 All ER at 227, 229,  1 WLR at 1021, 1023)). It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the disciplinary committee would be a case where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them.
(4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision. See Fox v General Medical Council and per Lord Guest in Sivarajah v General Medical Council ( 1 All ER at 507,  1 WLR at 116, 117)."
"The Committee were referred to the case of Silver v the General Medical Council…in which it was stated that all relevant matters must be considered before a finding of serious professional misconduct is reached and not merely in mitigation as to the sanction imposed. "
After noting something of the history of Dr Birkin's contribution of paediatric and neonatal work on the Isle of Man the Determination continued:
"The Committee consider that the two cases about which it has heard evidence appear to be isolated incidents against a background of otherwise unblemished medical practice of over 30 years.
They have also considered the outstanding testimonial that have been submitted on your behalf, both in person and in writing, by your patients and colleagues, all of whom state that you are a highly committed, caring and professional doctor who cares deeply about your patients.
In all these circumstances, the Committee have concluded that you are not guilty of serious professional misconduct."
"The Committee therefore finds you guilty of serious professional misconduct. However, we note that you work in a deprived area where it is difficult to get staff and medical assistance. You have a large list of patients whom you have served for 40 years as a sole practitioner. The Committee are aware that this is the only complaint recorded against you and have all read carefully the testimonials submitted on your behalf."
"It is axiomatic that after findings of fact all the relevant circumstances must be considered before a finding of serious misconduct can be arrived at. The matters set out in the paragraph immediately following the announcement of serious professional misconduct were…relevant to, and should have been taken into consideration when arriving at, the decision of serious professional misconduct and not merely as a consideration as to the appropriate sanction…"
"I have seen decisions in which it is apparent that, in deciding whether the doctor was guilty of serious professional misconduct, the Committee panel took into account purely personal mitigation from testimonials."
In fairness to the panels which had done so, she pointed out that rule 28(2) allowed such material to be put before them, and as they were not lawyers, it was "natural that they would be influenced by it". In any event, and we now come to the immediate point, Dame Janet observed that:
"The practice of taking irrelevant personal mitigation into account when deciding that the conduct amounted to serious professional misconduct was encouraged by some decisions of the Privy Council."
"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium which inevitably attaches to the disciplinary offence…The specific shortcomings established against the appellant vary in gravity. After analysis, the most serious shortcoming was identified as an "elementary and grievous failure" amounting to serious professional misconduct, but some of the other charges did not, but formed part of the setting in which the seriousness of the appellant's conduct had to be assessed."
"There is some force in a submission in the case for the appellant…:
"that for every professional man whose career spans, as this appellant's has, many years and many clients, there is likely to be at least one case in which for reasons good and bad everything goes wrong – and that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record"."
"Lord Cooke of Thorndon said at paragraph 28 on page 1936C:
"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence …"
And at paragraph 29:
"that for every professional man whose professional career spans, as this appellant's has, many years and many clients, there is likely to be at least one case in which for reasons good and bad everything goes wrong – and that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record."
This quotation was inaccurate. It omits two critical features. First, that the passage relating to the unblemished record of the practitioner was a note by Lord Cooke of a submission by counsel which, without adopting as his own, he acknowledged had "some force". More important, such force as the submission carried related to the issue of penalty alone, and was therefore relevant only to mitigation.
(1) professional conduct committees should first determine in accordance with Rule 27(2) whether the conduct, which is found to be proved or admitted, is insufficient to support a finding of serious professional misconduct;
(2) if they conclude that the facts proved or admitted are not insufficient for that purpose, they should then proceed to consider whether the relevant facts constitute serious professional misconduct; although the same material may sometimes be relevant to both questions, they should keep separate in their minds matters going to proof, or otherwise, of serious professional misconduct and matters going to personal mitigation;
(3) although, they can, if they think it right to do, consider the circumstances in which the practitioner found himself when committing the relevant misconduct, they should always be alert to the possibility that such circumstances may be more properly relevant to the question of penalty rather than to the question whether the professional misconduct was serious; in particular committees should not use personal mitigation to downgrade what would otherwise amount to serious professional misconduct to some lesser form of misconduct;
(4) at this stage, the number and strength of the practitioner's testimonials will almost invariably be irrelevant; they will usually be relevant to the question of the appropriate penalty;
(5) only when the committee has decided whether the practitioner was guilty of serious professional misconduct, should they proceed to make a direction in relation to penalty pursuant to Rules 30 and 31.
"The Professional Conduct Committee erred in law in taking into account the personal mitigation advanced by Dr Birkin (namely, his "unblemished medical practice" and personal testimonials) in deciding whether he was guilty of serious professional misconduct. That evidence was relevant only to the question of sanction, following a finding of serious professional misconduct."