England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		4th October 2004

Monday, 4th October 2004
1. MR JUSTICE COLLINS: The appellant, Dr Nandi, qualified as a doctor at the University of Calcutta in 1964. He came to this country and since 1970 has been in practice, together with a partner, as a general practitioner in Seven Sisters Road in North London. As may be gathered from the address, the practice is in a very deprived area of London and there have been many difficulties in Dr Nandi's path. For example, there has to be a high degree of security in respect of the premises because burglaries are commonplace. His computers, which he needed in his practice, have been stolen and his car was set alight on one occasion. He also has a substantial number of patients who are chronically ill or who have real difficulties, and three such patients have given rise to the problems which have resulted in this appeal. It is an appeal under section 40 of the Medical Act 1983, Dr Nandi having been convicted by the Professional Conduct Committee of the General Medical Council of serious professional misconduct.
2. The sanctions imposed were conditions upon his practice, the details of which are not necessary for me to go into because there is no challenge to them; the challenge is to the finding of serious professional misconduct. Indeed, Dr Nandi expressed himself willing to abide by conditions either the same as or very similar to those which the Committee decided to impose, and one of the arguments raised, certainly in writing, on this appeal was that the finding of serious professional misconduct was unnecessary because Dr Nandi was prepared to give those undertakings. Mr De La Rosa did not pursue that ground, in my view correctly, because it obviously is important and is in the public interest that the Committee should make a finding of serious professional misconduct if the evidence warrants that finding and, equally, that the doctor should be acquitted if that is the correct finding on the evidence. It is not right that a doctor should be able to avoid a finding of serious professional misconduct by giving undertakings. There are problems with enforcement of undertakings and, so far as the GMC is concerned, in keeping records of such undertakings because obviously it is in the interests of the public that they should know whether there exist such undertakings in the case of individual medical practitioners. I have no doubt whatever in the circumstances that an undertaking is not a proper disposal when there are charges of serious professional misconduct. The only circumstances in which undertakings may be appropriate, and only then in the rarest of cases, would be where there have been interim orders made and the court is asked to extend an interim order. There may be circumstances, and indeed in a case heard in August I decided there were circumstances, in which such undertakings were permissible but that, as I say, does not apply, in my view, to a final decision such as this.
3. The allegations related to three patients. The first concerned events in 1997, the second in early 1998 and the third in late 2001. It is unfortunate that the allegations, particularly the first two, had taken such a long time to get before the Committee. However, that, in itself, was not a reason for the Committee not to consider them and not to make a finding of serious professional misconduct if such a finding was justified.
4. The allegations in relation to the first of the patients, a Mr M, were, as laid, perhaps the most serious, because it was alleged that the actions of Dr Nandi which were complained of were misleading and indeed dishonest.
5. What had happened was that Mr M had come to his practice in August of 1997, he having moved to an address in the area. He needed permanent medication in relation to kidney failure, and the particular medication I think was concerned to deal with high blood pressure from which he was also suffering -- perhaps the precise nature matters not, but the fact is that he was in need of regular prescriptions for the medication in question. It was therefore a question, generally speaking, of providing him with repeat prescriptions. Unfortunately, he was a difficult patient, he caused problems with Dr Nandi's staff and Dr Nandi did not want to keep him as a permanent patient on his list. Accordingly, he requested Mr M to find another practitioner, but in the meantime it was obvious that Mr M needed his regular medication.
6. The rules, that is to say the National Health Service General Medical Services Regulations of 1992, did not enable a patient to be registered as a temporary resident in that sort of situation. Registration as a temporary resident was designed to cater for people who were not likely to be living in the doctor's area for more than up to three months as a general proposition, and that was not the position in relation to Mr M. However, as I have said, it was Dr Nandi's case that he did not want him to be on his permanent list but nonetheless felt obliged to provide him with the necessary medication because otherwise his health might well suffer. Thus, he recognised that he broke the letter of the regulation, but he acted in good faith in the sense that he believed he was acting in the interests of his patient.
7. The allegation was that he had done it deliberately in order to obtain extra money from the State in relation to the registration of Mr M. That was denied and the Committee found that that allegation was not established. It follows that there was therefore, albeit a breach, a technical breach of the relevant regulation, and Mr Clarke, on behalf of the GMC, recognises that that particular allegation fell away, as it were, in relation to serious professional misconduct. It was certainly wrong of Dr Nandi to do it, but it could not properly be regarded on its own as serious professional misconduct. On the other hand, it was a matter which the Committee was entitled to take into account when looking at the matters that they had found proved in the round.
8. The other two cases related to what was alleged to be lack of proper care of two particular patients.
9. The first concerned Mrs H. She was a patient not of Dr Nandi but of his partner, albeit Dr Nandi had perhaps seen her on the odd occasion because she had a chronic condition and needed regular, I think monthly, injections. She was suffering from some sort of psychotic problem. On 29th January, Mrs H's daughter-in-law visited her at the request of her son and she telephoned the doctor (the telephone call would appear to have been somewhere around 4.50 in the afternoon) because Mrs H was in bed suffering from pain in her chest and abdominal pain. She had also, it was said, been vomiting and had diarrhoea -- I say "it was said", it was not said to Dr Nandi but it was said later that she was also suffering from those symptoms.
10. It was the case on behalf of Mrs H's daughter-in-law and son (Mr and Mrs A) that Dr Nandi refused to agree to make a home visit, informed them that in his view Mrs H was suffering from influenza, that she should take paracetamol and that her symptoms would pass. They persisted in trying to make him agree to a home visit and eventually he indicated that he would not come himself but would send a doctor from the service which he used to deputise for him when he was unavailable. He did not ask any questions about the nature of the chest pain from which Mrs H was said to be suffering, nor did he give any advice about her care - those are at least the allegations that were made.
11. In fact, a locum doctor did visit Mrs H, but not until somewhat later. There was a further call later that evening when no-one had visited when again the son and daughter-in-law were concerned that someone should come to see Mrs H. In fact, the locum doctor attended and prescribed Gaviscon, which I understand to be a form of indigestion remedy. So clearly the locum doctor did not believe from what he saw that there was anything seriously wrong with Mrs H.
12. There was no report back to Dr Nandi. The system that existed at that time -- I gather it has been, no doubt very sensibly, amended since -- was that if the locum doctor took the view that there was a follow-up needed or something serious needed to be told to the GP, he would telephone him and inform him accordingly. Otherwise he would fill out a slip which he would give to the patient or to the patient's family with a view to that being brought to the GP's surgery as soon as possible to enable the running record of that patient to be brought up-to-date so that he knew what the problem was. That is now recognised as somewhat haphazard because patients and patients' families could not necessarily be relied on to provide the slip within a reasonable time or indeed at all. The new system, as I understand it, is that routinely the locum doctor will fax a copy of the relevant record to the GP, in this case to Dr Nandi. Dr Nandi on this occasion received nothing and he was, as I see it, entitled in those circumstances to assume that there could have been nothing particularly serious observed by the locum doctor and that that doctor did not believe that there was any follow-up from Dr Nandi required, certainly nothing of urgency.
13. In fact, Mrs H's condition did not improve and three days later, on Sunday 1st February, she was visited again by her son, who thought that her condition had deteriorated and thus telephoned Dr Nandi to ask for a home visit. He explained that she was continuing to suffer from chest pain and abdominal pain, that she seemed worse, that she was pale and that she had swollen ankles. It was said that Dr Nandi's response was to criticise Mr A for not having brought the envelope left by the locum doctor and suggest that he bring that to the surgery on the Monday. It was also alleged by Mr A, although the Committee found that this was not established and did not accept it, that he said that he would not make a home visit on a Sunday. What he in fact did, and this is common ground as I understand it, was to tell the son to contact the out of hours service himself and to provide him with the telephone number of that service. He did not request any details of the symptoms from which Mrs H was said to be suffering and it was found by the Committee that his attitude during the course of that telephone call was inconsiderate. It was alleged that it was worse than that and that he had been rude and made some inappropriate comment in relation to an assertion by the son-in-law if he was going to make a complaint, but those allegations were not established before the Committee.
14. The locum doctor who took the telephone call seems to have taken the view that it was necessary to send an ambulance, and an ambulance did go to the premises and took Mrs H to hospital. She died some 17 days or so later. She was suffering, as it transpired, from Crohn's Disease and the death was caused by a combination of Crohn's Disease and peritonitis.
15. It was never alleged that Dr Nandi's conduct had in any way contributed to the death or had meant that she had not received treatment that might have saved her life. It is important that that should be made quite clear, and indeed it was never part of the case against him that that was the position.
16. What was alleged and what was found by the Committee was that he did not, on that Sunday, make an adequate assessment of her condition, it being said, in particular, that her symptoms had been going on for three days, that the vomiting from which she was suffering could have led to dehydration and that she had developed further serious symptoms, including swelling of her ankles.
17. There is one problem with those findings by the Committee. They state that he should have appreciated that vomiting could have led to dehydration. However, they find not established that he was ever told that she had been vomiting, so it is somewhat difficult to follow how he should be criticised for not appreciating that vomiting could have led to dehydration when he did not know and had not been told that she was vomiting. The only basis, I suppose, upon which that could be said to be an appropriate finding is if he should have (and indeed they find that he should have) asked further questions and discovered more about what she was suffering from, and if he had asked those questions it may be that he would have been told that she had been suffering, among other things, from vomiting.
18. The evidence given by the son and daughter-in-law before the Committee painted a far more serious picture of Dr Nandi's conduct, and in particular of his alleged failure to agree to visit or to cause a visit to be made to Mrs H, his alleged failure to take the matters complained of as seriously as he ought to have done and his alleged rudeness and failure to deal properly with the concerns of Mrs H's relations. The Committee make adverse findings, but, as I have indicated, those findings fell far short of the assertions which were made in evidence by Mrs H's relations.
19. The third case concerned a Mr R, who was a patient who suffered from mental problems, in his case schizophrenia, which was controlled by a drug. His condition deteriorated from the summer of 2001. He had last been seen by Dr Nandi on a professional basis, in the sense of a consultation, in June 2001.
20. In October the social services contacted Dr Nandi, concerned with Mr R's physical and mental health. On 18th October representatives of social services visited Mr R and decided that he should be seen by his general practitioner, it was said to rule out any organic cause for his deteriorating behaviour. The accommodation in which he was living was in a filthy condition, he was apparently incontinent and there was concern that he had set fire to or somehow there had been a fire in the premises in question.
21. On that same day, 18th October, a senior social worker called at the surgery, but it was closed. Dr Nandi was spoken to on the telephone and it is alleged that he indicated that he had not seen Mr R since June. In fact, he had seen Mr R, although not, as it were, in a formal way - he had run into him in the street, as it happens, outside a shop. Although, as he recognised when he gave evidence before the Committee, it could not be said that this was in any way a proper sort of consultation, he had been able to form at least a view as to Mr R's general physical condition. It was by no means a satisfactory state of affairs, and it is certainly not an examination on which reliance could be placed as a proper medical examination, but Mr R was a long standing patient and Dr Nandi, although he had not seen him for some three months since June, before then was, generally speaking, familiar with him and familiar with the problems that he faced.
22. On the 19th, the following day, again there was a visit to the surgery by a senior social worker and it was arranged that Mr R would be seen by Dr Nandi that day at his surgery, but, unfortunately, for whatever reason, he did not attend, and equally he did not attend a further appointment which had been arranged for 25th October.
23. On the 29th there was further concern expressed by social services that Mr R should be assessed by Dr Nandi. In fact, Dr Nandi had sent a fax to the Whittington Hospital addressed to the consultant psychiatrist on the 18th, and in that he had requested an opinion on the treatment for Mr R. He had observed that Mr R had been "confused, irritated, poor sleep, poor appetite" and the signs of his condition were "poorly kept, not suicidal, good eye contact".
24. What was found established by the Committee was that Dr Nandi should have seen Mr R between 12th and 19th October to assess whether there was any physical condition accounting for his illness, whether there was any significant change in his mental condition, whether it was safe to leave him at home or whether he should be admitted to a geriatric ward and whether his mental condition was such that he needed hospitalisation, and if so whether he would agree to voluntary hospitalisation. It is said that the fax that he sent to the consultant psychiatrist was misleading because it gave the impression that he had assessed Mr R, whereas in fact he had not, short of the chance meeting in the street. Therefore, it was said that he had not put himself in a position to consider whether the referral to the mental health unit was appropriate, he had not been able to assess the seriousness of Mr R's condition and this was a falling below proper conduct.
25. Those were the matters that were found to be established. As I say, they fell below what was alleged, and also in relation to Mr R there were allegations made that were not substantiated and which went beyond what I have indicated was the case which was proved.
26. Mr De La Rosa attacks the finding on two grounds. First, he submits that no reasonable tribunal should have made the findings of fact. Secondly, he submits that, even if one takes all their findings at their highest, the conduct which they disclose was not sufficient to amount to serious professional misconduct.
27. So far as this court's approach is concerned, there is very little, if anything, between counsel. The Committee deals with the matter in stages. First of all, it finds the facts. It then goes on to consider whether, on those facts, it is appropriate to make a finding of serious professional misconduct, and then it considers also the question as to what penalties should be imposed if such a finding is made. So far as findings of fact are concerned, this is an appeal which is not limited but, in accordance with the general approach of the Court of Appeal, there will not be interference with findings of fact unless the court takes the view that they are clearly wrong. The Committee have heard the evidence, have seen the witnesses give that evidence and will be in the best position to judge what evidence they accept and what they reject. Of course, if this court is persuaded that a particular finding was one which was not appropriate, should not have been made and was clearly wrong, then it will interfere, but not otherwise.
28. I should say that, as has been pointed out by Mr De La Rosa, the practice direction to Part 52 of the CPR deals with appeals under, among other provisions, section 40 of the Medical Act in paragraph 22.3. Paragraph 22.3(2) reads:

"Every appeal to which this paragraph applies must be supported by written evidence and if the court so orders oral evidence and will be by way of re-hearing."

That would seem to take precedence over the provisions of rule 52.11, which provides:

"Every appeal will be limited to a review of the decision of the lower court unless -

(a) a practice direction makes different provision for a particular category of appeal; or

(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing."

29. This court has taken over from the Privy Council the consideration of appeals from decisions of, among others, the General Medical Council. The Privy Council would rarely, if ever, hear evidence on an appeal. There would be no need because there is kept a full transcript of the evidence and that is put before the court if it is said that the findings were not supported by the evidence or were wrong in the light of the evidence which was given. So it seems to me that practice direction 22.32 should be reconsidered because it is, in my view, clearly inappropriate for appeals such as this. However, Mr De La Rosa did not submit, and in my view rightly did not submit, that there was any need for there to be a hearing of evidence. He accepted I could properly, and generally this court will, deal with the matter on the basis of the transcript of the material heard before the Committee. Indeed, I cannot think of circumstances in which this court would hear fresh evidence, although one must always be careful in this jurisdiction not to say never because then there comes a case when one realises that exceptionally it is appropriate to take a particular course, but it is very difficult to conceive of any circumstances in which it would be appropriate for this court to hear evidence and, whatever is meant by a re-hearing, it does not involve a reconsideration of evidence such as, for example, takes place in the Crown Court on an appeal against a decision of the magistrates' court. This is a case where the normal rules of the Court of Appeal will apply in the way that I have indicated.
30. Having dealt with the facts, then consideration is given to whether those facts support a finding of serious professional misconduct.
31. What amounts to professional misconduct has been considered by the Privy Council in a number of cases. I suppose perhaps the most recent observation is that of Lord Clyde in Rylands v General Medical Council [1999] Lloyd's Rep Med 139 at 149, where he described it as "a falling short by omission or commission of the standards of conduct expected among medical practitioners, and such falling short must be serious". The adjective "serious" must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners. It is of course possible for negligent conduct to amount to serious professional misconduct, but the negligence must be to a high degree.
32. The notes in Halsbury's Statutes to section 36 of the Medical Act of 1983 give some indication as to how the courts have over the years approached the question of serious professional misconduct. There are no closed categories and the appropriate standard is a matter for the Committee to decide. It is not restricted to conduct which is morally blameworthy. It could, as I have indicated, include seriously negligent treatment or failure to provide treatment measured by objective professional standards. Obviously, dishonest conduct can very easily be regarded as serious professional misconduct, but conduct which does not amount in any way to dishonesty can constitute serious professional misconduct if it falls far short of the standard that is considered appropriate by the profession.
33. The court will in all the circumstances accord an appropriate measure of respect to the judgment of the committee. In Ghosh v GMC [2001] 1 WLR 1915 Lord Millett cited observations in an unreported earlier case of Evans v General Medical Council to this effect:

"'The principles upon which this Board acts in reviewing sentences passed by the Professional Conduct Committee are well settled. It has been said time and again that a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct, and that the Board will be very slow to interfere with the exercise of the discretion of such a committee ... The committee are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards.'"

Those observations relate to sentence but can be applied mutatis mutandis to findings of serious professional misconduct. Lord Millett went on:

"For these reasons the Board will accord an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the Board will not defer to the committee's judgment more than is warranted by the circumstances..."

And it would obviously be a dereliction of my duty if I were simply to say, "The Committee are the experts, they formed the view that the conduct fell sufficiently far below that to be expected of a general practitioner and therefore amounted to serious professional misconduct". On the other hand, I must and do attach considerable weight to that finding on the basis that they indeed are the experts and they know what is required by the profession.

34. Mr De La Rosa has submitted in relation to the H case that the findings that the doctor had diagnosed flu, or commented that it was nothing but flu, and paracetamol should be given were findings which they should not have made. Dr Nandi denied having said that, or rather his evidence was that he would not have said that but he could not, because of the lapse of time, be positive and was not able to say positively that he had not, but he was sure that he would not have said anything like that. He was relying to a large extent upon the notes which he had made at the time, and there was no suggestion that those notes were other than genuine, honest notes. His notes in relation to the telephone call of 29th January record that it was made at 4.50 pm and read as follows:

"Son phoned and asked for a home visit. His mother is ill in bed for 2 days. Not eating, losing weight, getting chest pain. Dr N arranged a home visit by deputy."

Then in relation to the Sunday call he records:

"Son phoned and asked for a home visit on his mother as she is ill for 2 days, not eating. Dr N explained that he should have brought in the visit slip. He became annoyed and threatened. Doctor N gave him Medicall's [that is the deputy service] Tel No to contact directly for a visit."

35. The medical notes in relation to the first visit, that is to say the one on 28th January, record that Dr Nandi telephoned Medicall at 5.18 pm and they arranged for the visit to be made at 6.46. The visit in fact took place at 7.15. As Mr De La Rosa points out, the gap between the call received at 4.50 and the telephone call to the deputising service at 5.18 is wholly explicable by the fact that Mrs H was not a patient of Dr Nandi and he thought it necessary to dig out her records and to make sure that there was nothing in them which needed to be told to the deputising service.
36. There is nothing in the notes indicating that he had said anything or given any advice beyond that recorded and, submits Mr De La Rosa, as indeed he submitted to the Committee, those notes were wholly consistent with Dr Nandi's account of the matter and were not consistent with the allegations being made by Mrs H's son and daughter-in-law, and to the extent that there was a conflict, the Committee ought to follow the notes, particularly as everything had happened such a long time before and it was really not fair to expect Dr Nandi to recall in detail. Indeed, although this was not I think said in terms, the fact that Mrs H had died may well, one would have thought, have coloured the son and daughter-in-law's approach to the matter because it is highly probable, perhaps almost inevitable, that they would have thought to themselves that there might be some connection between the unfortunate death of Mrs H and the lack of appropriate care which they believed Dr Nandi had exercised.
37. However, the Committee carefully, apart from the one matter in relation to the vomiting with which I have already dealt, considered the allegations that were made and did not find all of them established. They heard the evidence, they saw the witnesses. They were entitled to conclude, in my view, as they did. It may be that the conclusions were in certain respects somewhat harsh so far as the facts are concerned, and they clearly did not accept the whole of the evidence given by the family, but equally one bears in mind that Dr Nandi was not able to be absolutely positive in relation to what he might or might not have said, though he was quite clear that he had never said that he was not going to ensure that there was a home visit, the Committee accepted that, and that he had never been rude or dealt with them in an offhand manner. Again, although the Committee took the view that he had not been as considerate as he ought to have been, they rejected the allegation of rudeness. Accordingly, in my view, the Committee was entitled to find the facts as they did.
38. One then has to consider whether, on those facts, they were justified in deciding that there was serious professional misconduct.
39. I now go to the notification, which was sent to Dr Nandi on 9th December 2003, of the Committee's findings. I do not propose to read it all, it is quite a lengthy document. They set out their findings of fact and their conclusions. Having said they took a serious view of his conduct in all three cases, they point out that the Council's publication "Good Medical Practice" of October 1995 stated that registered medical practitioners must take reasonable steps to verify any statement before signing a document. They say that Dr Nandi acted improperly in allowing the re-registering of Mr M as a temporary patient.
40. It does seem that they did attach some weight in reaching their conclusion on serious professional misconduct to that matter. It seems to me that if they once accepted, as they clearly did from their rejection of the allegations that what Dr Nandi had done was either misleading or dishonest, that he did it because of his concern that Mr M should continue to receive the appropriate treatment and there was no question whatever of misleading anyone or of manipulating the system, then, as it seems to me, it really should have carried no weight whatever in considering the overall question of serious professional misconduct. I did not understand Mr Clarke seriously to argue to the contrary. His case was that the two instances in relation to Mrs H and Mr R of inappropriate patient care were themselves quite sufficient to justify the findings that the Committee had reached. Nonetheless, it is plain, as I say, that the Mr M matter was given some weight by the Committee. They then go on as follows:

"'Good Medical Practice' (both October 1995 and May 2001, which were current at the time of the respective events) also states that 'Patients are entitled to good standards of practice and care from their doctors', that doctors 'must listen to patients and respect their views' and it makes clear that doctors must provide and arrange investigations or treatment where necessary. Your response to the requests for treatment made on behalf of Mrs [H] on 29 January 1998 and 1 February 1998 fell below the standards which would normally be expected of a general practitioner in that you failed to put yourself in a position to assess accurately the needs of the patient, did not take full account of the information provided to you and failed to communicate your intended actions clearly to the representative of the patient. These serious failures, which could have compromised the treatment of your patient were compounded by your inconsiderate approach to Mrs [H]'s relatives, whom you recognised to be anxious and distressed, when they attempted to provide details of their condition."

41. One must look to see what Dr Nandi actually did. He received the call when he was about to go into surgery with a large number of patients awaiting his attention. He says that he informed the relatives that he would not in any event be able to make a home visit before 8 o'clock at the earliest, because that was when his surgery would end. There was an issue about whether he did say that. What he clearly did, and there is no dispute about this, was to contact and notify the deputising service to ensure that a doctor went to see Mrs H. He did not, it is true, make any further enquiries about her condition, about the precise nature of the pains and so on, but he had checked the records to find that there was no history of any problems relating to her chest.
42. It is not for me, I do not have the expertise, to judge whether it would be expected of a general practitioner in those circumstances to go into any great detail, but one does wonder what would be the need if he had decided that a doctor was to make a home visit. Obviously, he would reasonably be expected to satisfy himself that there was no emergency, but if it had been that serious one would have expected the relatives to have phoned for an ambulance. As it was, as I say, he arranged for a locum doctor to visit.
43. It seems to me in those circumstances that to describe what he did as falling below the standards normally to be expected so as to amount to serious professional misconduct is putting the matter altogether too high. He did not, as I have said, receive any information from the locum, and indeed, as it happens, the locum clearly took the view (this seems to me to be a wholly reasonable inference) that there was nothing seriously wrong, otherwise he would have hardly prescribed no more than a indigestion remedy. It may be that when he was telephoned on the Sunday Dr Nandi was over-concerned at the failure to bring the slip from the locum doctor, but it is clear that he did give the information and suggest that they rang the deputising service directly. Indeed, it was apparently his practice, even though he was off duty on a Sunday, to have the telephone patched through to his home and he would answer the telephone and would, as it were, act as a filter to decide whether the deputising service did need to be troubled on any particular occasion. He was, and indeed this was accepted, prepared himself if he felt it necessary to make a home visit even though he was off duty and even though it was a Sunday.
44. It is true that he could perhaps have asked for more details, and indeed it may even be that best practice would have suggested that he should have made further enquiries on the Sunday because, after all, this was someone who had apparently been treated but whose condition had not improved and therefore there was a fear, a reasonable fear one would have thought, that there might be something rather more serious than had at first met the eye. It may well be that it is wholly proper to regard Dr Nandi's actions as falling below the standard to be expected and certainly falling below that required by good medical practice, but that does not mean that it should be regarded as serious misconduct. It is certainly capable of amounting to misconduct and I have no doubt that the Committee could not be criticised for taking that view, but one looks at what he actually did and what the results of what he did were, namely to enable Medicall to be contacted. The locum doctor took the view that an ambulance was needed - we do not know what he was told and we do not know what information he elicited. I am bound to say that I have difficulty in the circumstances in agreeing with the view that the conduct in relation to Mrs H amounted to serious professional misconduct.
45. That leaves Mr R. What the Committee said about that was this:

"Your treatment of Mr [R] in 2001 has also highlighted serious shortcomings in your practice. You failed, despite several contacts from the Social Services, to place yourself in a position to assess adequately Mr [R]'s condition. Nevertheless, you referred Mr [R] to Dr Rands for an opinion and treatment, giving the impression that you had carried out an examination without having done so. Good Medical Practice states that 'you must not sign documents which you believe to be false or misleading'. Your actions in this regard were unacceptable as you were not in a position to know whether this was an appropriate referral and had not been able to assess the seriousness of his condition."

46. Certainly Dr Nandi had not made an examination of Mr R which could have been relied on as a proper medical examination. On the other hand, he was well aware of him as a patient and he had seen him and formed a view when he had met him in the street. He had not seen him at his surgery because, for whatever reason, Mr R had chosen not to attend; indeed, it was clear he was a very difficult patient. As it happens, Dr Nandi was proved right in that Mr R was properly regarded as someone who was suffering from mental illness as opposed to any physical illness, and it was wholly appropriate that he should have been dealt with in a psychiatric manner.
47. But, as Mr Clarke submits and I accept, that is to act with hindsight, and the fact that he was right does not forgive his failure to take the necessary steps if he ought to have taken them. Whether it is fair to regard the letter to Dr Rands as misleading I am not sure. It does not, of course, say in terms that he had carried out an examination, but it may be that it could have led to that view.
48. There is a reference to "shortcomings" in his practice. Indeed, that is picked up in the further paragraph in the reasoning of the Committee where they say this:

"The Committee have taken account of the submissions of Counsel and the advice of the Legal Assessor in determining whether your conduct in these cases amounted to serious professional misconduct. The Committee recognise some of the difficulties inherent in inner-city practice. Nevertheless, your practice has fallen seriously short of the standards expected from a General Practitioner. The Committee are also concerned at your lack of insight into the deficiencies in your practice and your failure to accept responsibility for these shortcomings. The Committee have therefore found you guilty of serious professional misconduct."

49. The case against Dr Nandi was not put on the basis that his practice was at fault and there were problems in his practice; it was put on the basis that he had failed, as an individual general practitioner, to deal properly with the three cases in question and, in reality, it boiled down to the two, Mrs H and Mr R. Certainly the language used in that paragraph that I have just cited is ambiguous and it looks as if the Committee were going rather further and making general criticisms of Dr Nandi's practice. Mr Clarke submits that "practice" in that context must mean Dr Nandi's practice, that is to say what he did in relation to these cases, but the language used is certainly not very clear. Furthermore, it is a little difficult to see how the assertion that the Committee was concerned at the lack of insight into the deficiencies and failure to accept responsibility for shortcomings is appropriate unless all that they mean is "You disputed some matters and we found them against you". If that is all that they mean, so be it, but it is difficult to see how the more general sentiment behind that sentence is appropriate.
50. I am bound to say that I find this a difficult case. It is necessary for me to consider whether the finding of serious professional misconduct was, in all the circumstances, one which ought to have been made. I recognise the expertise of the Committee in this field. I recognise that they set the standards and they are the appropriate body to decide, generally speaking, whether any particular conduct does fall so far below that to be expected as properly to be regarded as serious professional misconduct.
51. I also have to bear in mind and look at the whole picture. I have to look at the doctor's record as a whole, practising for 30 years. These were two instances some three years or more apart in a 30 year period. It may well be, and indeed it no doubt is the case on the findings of the Committee, which, as I have said, I regard as appropriate, that there was a falling below the standards, which no doubt Dr Nandi sets himself as well as being the standards that one would expect from a general practitioner, but I do not think that it can properly be regarded as serious within the appropriate test. It seems to me that the Committee has taken altogether too harsh a view of what happened here and, as their reasons show, have given more weight than they should to the matters which they refer to and have regarded a falling below the standards of practice set out in the guidance as itself sufficient to amount to serious professional misconduct. It seems to me that they have drawn the line in this case in the wrong place and, although I do so with considerable deference and concern, I have come to the clear view at the end of the day that this is a decision which cannot stand. Accordingly, I propose to allow this appeal.
52. MR DE LA ROSA: Could your Lordship then allow the appeal and quash the determination of the Professional Conduct Committee. Once its decision goes, so does the sanction.
53. MR JUSTICE COLLINS: Yes.
54. MR DE LA ROSA: As I told your Lordship, there is in place another order imposing conditions on Dr Nandi's registration at the moment.
55. MR JUSTICE COLLINS: Those will all disappear.
56. MR DE LA ROSA: Yes.
57. So far as costs are concerned, I do ask for the costs of the appeal. Dr Nandi had to come here to clear his name. That was the reason for the appeal and your Lordship has found for him. In my respectful submission, it is a case in which costs really ought to follow the event.
58. MR JUSTICE COLLINS: I do not think you can resist that, can you, Mr Clarke?
59. MR CLARKE: I certainly cannot, that must be right.
60. MR DE LA ROSA: I am much obliged.
61. MR JUSTICE COLLINS: I take it it will be the usual order, subject to detailed assessment if not agreed.
62. MR DE LA ROSA: Yes.
63. MR CLARKE: My Lord, indeed.