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Cite as: [2008] ScotCS CSIH_35, [2008] CSIH 35

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Johnston

Lord McEwan

[2006] CSIH 35

XA66/07

OPINION OF THE COURT

delivered by LORD OSBORNE

Appeal to the Court of Session under the General Medical Council's Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988

DR JAMES SWANNEY

Appellant;

against

The full decision of the General Medical Council's Fitness to Practise Panel Hearing of 13 April 2007, communicated to the Appellant on 18 April 2007, of serious professional misconduct

_______

Act: Party

Alt: Dunlop, Advocate; Messrs Anderson Strathern

11 June 2008

The background circumstances

[1] When this appeal came before us on 18 March 2008, it was a matter of agreement between the appellant and counsel for the respondents, the General Medical Council, that the proceedings would begin with an explanation of the background given by counsel for the respondents, to be followed by his submissions, which would be a response to the skeleton arguments in writing lodged by the appellant. Thereafter the appellant would elaborate his written arguments and make his own submissions. It appeared to us to be appropriate to proceed in that way.

[2] The circumstances were that the appellant had dual registration as a medical practitioner in the United Kingdom and in British Columbia, Canada. He was registered in the United Kingdom between 1970 and 1990 and thereafter from 2001 to the present date. He was registered in British Columbia from 1974 to the present date. As a result of certain events which occurred in 1999 and 2000 disciplinary proceedings were instituted by the College of Physicians and Surgeons of British Columbia against the appellant. He admitted certain of the charges against him and entered into a consent agreement, dated 18 November 2003, which resulted in the erasure of his name from the full medical register in British Columbia and the entering of it on a temporary medical register, which involved certain restrictions on practice. He was also charged with criminal negligence, following upon the death of a patient A. In those criminal proceedings, the appellant was acquitted, after a submission of no case to answer.

[3] Following upon the conclusion of the Canadian disciplinary proceedings, the College of Physicians and Surgeons of British Columbia wrote, in 2004 to the respondents, advising them of the outcome of the disciplinary proceedings in Canada. The respondents then initiated their own investigation, which led to disciplinary proceedings in the United Kingdom before a Fitness to Practice Panel, "the panel". In April 2007, following upon an eight day hearing, the panel reached a decision, dated 13 April 2007, which was communicated to the appellant on 18 April 2007, finding him guilty of serious professional misconduct, in these terms:

"The panel has come to the view that your actions as described (attachment 1) bring the profession into disrepute and demonstrate a serious departure (from) the standard of conduct that the public is entitled to expect from a medical practitioner. The panel therefore determined that you have been guilty of serious professional misconduct."

In consequence of that decision, it was not felt necessary by the panel to erase the name of the appellant from the register of medical practitioners, or to suspend his registration; however, conditions were imposed upon his right to practice for a period of twelve months, the details of which are set forth in the Minutes of the proceedings of the panel, dated 13 April 2007, 8/2 of process. Counsel drew attention particularly to the terms of charge 7 in relation to patient A, charge 12, in relation to patient B and charge 21, also in relation to patient B, also set forth in 8/2 of process.

[4] Counsel went on to explain to us the statutory background to the matter. His exposition related to the law as it stood at the time of the relevant offences. Subsequently to those offences it was amended. The relevant legislation was the Medical Act 1983. Section 1 of the 1983 Act provided for the continuation of the existence of the respondents, having functions there described. Section 2 provided for the continuation of the keeping of registers of medical practitioners registered under the Act. The appellant was a fully registered person, within the meaning of Section 55(1) of the Act, the significance of which could be seen from the terms of Section 3. Section 36 of the 1983 Act provided for the consequences of a finding of serious professional misconduct, whether while so registered or not. Sub-section (1)(iii) entitled the relevant committee to direct, if they thought fit, that the registration of the registered person should be conditional on his compliance, during such period not exceeding three years as might be specified in the direction, with such requirements so specified as the committee thought fit to impose for the protection of members of the public or in his interests. Section 40 of the 1983 Act provided that a decision, such as arrived at in this case, was an appealable decision, the appeal lying to the relevant Court. That Court was the Court of Session, having regard to the fact that the appellant's address in the register was in Scotland. Section 40(7) of the 1983 Act provided for the powers of the Court in such an appeal. These powers were unrestricted. The Court could dismiss the appeal, allow the appeal and quash the direction or variation appealed against, substitute for the direction or variation appealed against any other direction or variation which could have been given or made by the committee concerned, or remit the case to the committee concerned to dispose of the case in accordance with the directions of the Court. The nature of the appeal process had been explained in Raschid v The General Medical Council (CA) [2007] 1 WLR 1460. There the Court held that the principal purpose of the panel was the preservation and maintenance of public confidence in the profession rather than the administration of retributive justice, and it was necessary to accord special respect to its judgment; that, accordingly, on appeals under Section 40 of the 1983 Act, the Court, while correcting material errors of fact and law, should exercise a distinctly and firmly secondary judgment. Reference was made particularly to the judgment of Laws L.J., in paragraphs 16 to 20. Further guidance as to the character of the appeal process could be got from Mallon v The General Medical Council 2007 S.C. 426, particularly in paragraphs [19] and [20] of the Opinion of the Court delivered by the Lord Justice Clerk (Gill).

Submissions for the Respondents

[5] The appellant, in his written submissions had stated four arguments. Counsel for the respondents intended to deal with these in turn. The first argument was to the effect that, during the period from 1998 to 2000, the appellant was practising in full service family general practice in Abbotsford, British Columbia, Canada and that during that time was neither registered nor practising under the aegis of the respondents, nor was he a licensee of them. Thus the contention was that, since, at the material time, the appellant had not been registered with the respondents and that the matters complained of had occurred in Canada, the respondents had no jurisdiction over him. Counsel submitted that this argument was misconceived. So far as the question of timing was concerned, the appellant's argument was undermined by the provisions of Section 36(1)(b) of the 1983 Act. Under that provision the committee was empowered to act where a fully registered person: "(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not ...". The latter words of that provision indicated that registration at the time of the occurrence of the events giving rise to the conclusion that serious professional misconduct had been committed was not relevant. As regards the point made by the appellant that the relevant events had occurred in Canada, again the point was misconceived because of the same statutory provision, Section 36(1)(b). That statutory authorisation to the professional conduct committee contained no geographical restriction. The consequence of the alternative view would be very surprising and undesirable. If the appellant were right on this point, it would mean that a registered person could practice medicine in the United Kingdom even though their conduct in some other state had demonstrated that they were unfit to practice. That would be a negation of the underlying purpose of the respondents' disciplinary jurisdiction. Section 1(1A) of the 1983 Act demonstrated that the main objective of the respondents in exercising their functions was to protect, promote and maintain the health and safety of the public. The appellant's interpretation of the legislation would militate against that purpose. Counsel acknowledged that this particular point had not been taken previously, but submitted that Marinovich v The General Medical Council [2002] UKPC 36 was relevant. In that case the conduct in question had occurred in Darwin, Australia. No point had been taken that the jurisdiction of the professional conduct committee was geographically limited. Counsel also relied in this connection upon Office of Fair Trading v Lloyds TSB Bank plc & others [2007] 3 W.L.R. 733. In that case it had been held by the House of Lords that the imposition on United Kingdom credit card issuers of a statutory liability to card holders in respect of foreign supply transactions did not amount to extra territorial legislation. Reference was made particularly to the observations of Lord Hoffmann in paragraphs 3 and 4 and Lord Hope of Craighead in paragraph 13; also those of Lord Mance in paragraphs 25 and 27. The principle recognised there also operated here. The legislation was not truly extra territorial, but was designed for the protection of consumers which was a consideration applicable as much to overseas as to domestic supply transactions. In the present case there was no question of extra territorial legislation. The purpose of the legislation was to regulate the conduct of registered persons who were registered in the United Kingdom.

[6] Counsel then turned to respond to the appellant's second argument in his written submissions, which was to the effect that:

"The majority of the evidence accepted by the GMC was continued (sic.) in a consent agreement between Dr Swanney and the College of Physicians and Surgeons of B.C.. Dr Swanney accepted with legal advice this consent agreement and the remedies placed by the College of Physicians and Surgeons of B.C.. The argument is that this had been dealt with, the appropriate remedies concluded and to reopen the same case with a different and more serious charge is a significant deviation from natural justice."

In effect, the argument was that the case should not have been reopened with more serious charges involved. The complaint in effect was one of double jeopardy. However, it was submitted that this argument was unsound. When one bore in mind the purpose of the disciplinary proceedings, the statutory function to protect the public, it became apparent that the situation was a world away from double jeopardy, as properly understood. The purpose of the proceedings was the protection of the public in the United Kingdom. That matter had not been an object of the proceedings in British Columbia. In connection with this submission counsel relied upon Regina (Redgrave) v Commissioner of Police of the Metropolis [2003] 1 W.L.R. 1136, where it had been held that disciplinary proceedings were of a different nature from criminal proceedings; the principle of double jeopardy did not have application in the context of disciplinary proceedings. Reference was made particularly to the observations of Simon Brown L.J. in paragraphs 31to 33 and 37 to 39. While it had to be acknowledged that, in the present case, there had been two sets of disciplinary proceedings, the respondents' submission was that the character and purpose of those proceedings differed. The Canadian disciplinary proceedings related to the province of British Columbia; the respondents' proceedings related to the United Kingdom. The Canadian proceedings quite simply had no relevance to the situation in the United Kingdom, for which the respondents alone were responsible. Counsel also drew our attention to Thomas v Council of the Law Society of Scotland 2006 S.L.T. 183. That case concerned a solicitor who had been tried on but acquitted of certain criminal charges. The Law Society of Scotland thereafter brought a complaint before the Scottish Solicitors' Discipline Tribunal alleging professional misconduct, which relied on the same factual allegations as had been relied upon by the Crown in the prosecution. The solicitor took a preliminary plea of res judicata, which was dismissed. Subsequently it had been held that an appeal against that dismissal should be refused. The Court held that the subject matter of the two sets of proceedings were not the same.

[7] Counsel moved on to consider the third argument advanced by the appellant in his written submissions. This ground was concerned with the evidence of a Dr Clare Gerarda, who had been adduced as a witness by the respondents. It was said by the appellant of her evidence that she acknowledged that she had never worked in Canada and had no personal knowledge of the standards or systems operated in medical practice in British Columbia; further she did not have any experience of, or any expertise with, two of the drugs in question. The contention of the appellant, in this regard, was that the evidence of Dr Gerarda was "invalid". It was unacceptable to give expert evidence in a field where the witness had no accepted expertise. Counsel explained that, during the course of hearing before the panel, there had been discussion in the proceedings relating to a possible conflict between standards applicable in Canada and in the United Kingdom. The issue had arisen of whether the Canadian standards could be followed. The legal assessor to the committee had advised the adoption of the Canadian standards. However, the position of the panel was that the results of the application of the standards was the same. In that connection reference was made to their observations in their decision, 8/2 of process, at pages 8, 9 and 10. Thus the point made about the qualifications of Dr Gerarda had no practical consequence. In connection with this matter it was legitimate to look at what the appellant had agreed. In the decision document at page 3, paragraph 10, several matters had been agreed by the appellant. These were important admissions and amounted to an agreement of the standards to be applied. Further facets of the matters agreed by the appellant could be seen on page 5 of the decision document, in paragraph 23. These passages involved admissions of failure to meet standards on the part of the appellant. As regards the matter of record keeping, it was submitted that there was no difference between the standards applicable in the United Kingdom and those applicable in Canada. In connection with the use of returned medications, the document "College Quarterly" of the College of Physicians and Surgeons of British Columbia, 8/4 of process contained a statement of standards in relation to these matters. There was no dispute as to the inappropriateness of the use of such medications.

[8] Having regard particularly to the admissions made by the appellant, the decision reached by the panel could not be said to be plainly wrong. In this connection it was helpful to look at the nature of "serious professional misconduct". In this connection counsel drew attention to Mallon v The General Medical Council 2007 S.C. 426. In paragraph [18] of the Opinion of the Court "misconduct" was considered. It denoted a wrongful or inadequate mode of performance of professional duty. If that wrongful or inadequate performance occurred in a professional context, plainly it was professional misconduct. As regards the word "serious", while the statute did not lay down any criterion of seriousness, a definitional chimera ought not to be pursued. The decision in every case as to whether misconduct was serious had to be made by the panel in the exercise of its own skilled judgment on the facts and circumstances in the light of the evidence. Reference was also made to paragraphs [21] and [28] of that opinion. In all the circumstances, the panel were quite entitled to reach the conclusion which they did.

[9] Finally counsel considered the matters raised in the appellant's fourth argument in his written submissions. In this part of the appellant's argument there was a complaint that there had been no proof of harm consequent on the use of the drug in question. However, that was beside the point. What was in issue was misconduct. In paragraph 23 of the decision of the panel reference was made to the agreement entered into with the College of Physicians and Surgeons of British Columbia regarding certain matters. On page 13 of the decision document, in the first full paragraph, the panel's reasoning was set forth as regards the use of Tylenol #3 that reflected the evidence of Dr Gerarda. The appellant's argument was not an answer to these matters. The second point raised as part of this argument seemed to be that the consent agreement classified the treatment of patient B as "inappropriate" a relatively minor charge. However, the inappropriate prescription for this patient was a matter of admission in the consent agreement. The panel itself had classified that prescription as inappropriate, which was what was alleged. So the panel had not gone beyond what had been admitted by the appellant. The third aspect of the complaint under this part of the appellant's written argument was that the respondents had entered different charges, but had relied on the findings based on the consent agreement. The appellant pointed out that there had never been any admission of any type of serious professional misconduct. However, counsel submitted that that was again beside the point. The consent agreement recorded certain admissions. That agreement did not in any way bind the panel, but the panel were entitled to make use of it as a basis for their finding of serious professional misconduct. Quite simply, the admissions made in the agreement by the appellant were part of the evidence which the panel were entitled to take into account in making their finding. In this connection reference was made to Head 10 on page 8 of the decision document and also to Head 23 on page 10 of that document. In the whole circumstances the appeal was without merit and should be refused.

Submissions of the appellant

[10] The appellant began by explaining the composition of the panel. Of the two medical members, one was an anaesthetist, the other a urologist. He went on to elaborate the chronology of the case. Some aspects of that required clarification. On 11 May 2000 patient A had died. It had been accepted that that had been related to a dose of methadone 20/20mg; the second dose had been given three or four hours after the first. In August 2000 the patient B had died. The death was a result of bronchial pneumonia. Morphine had been prescribed in a sub-lethal dose. In June 2001 an inquiry into the death of patient A had commenced. That inquiry had been aborted. In November 2001 it had been restarted and had become a cause célèbre. The findings had been made in 2002. It had made 17 recommendations, including the improvement of educational levels. In June 2002 the appellant had arranged to join a training programme. The appellant had not run away from pending charges. The position had been that the father of the young lady who had died had become politically active. In November 2003 the consent agreement had been reached with the college. In consequence restrictions had been imposed on the appellant's licence to practice in British Columbia. Some time afterwards he had been charged with manslaughter and criminal damage. The case had gone to Court in August 2006 but the appellant had been acquitted in December 2006. Following that, the present case had been brought by the respondents. The appellant explained that he was now practising in Canada as a full service general practitioner and intended to return there after the present hearing. He had always faced any accusations made against him.

[11] Moving on to the appeal itself, the appellant moved the Court to allow it and to quash the decision of the panel. His submission was that nothing that had been proved demonstrated serious professional misconduct. In May 1999 there had been no guidelines relating to methadone maintenance. Evidence which had emerged at the criminal trial demonstrated that it was not methadone that killed patient A. In the proceedings before the panel, it was not suggested that the appellant had been responsible for patient A's death; rather it was suggested that inappropriate quantities of drugs had been prescribed.

[12] The appellant drew attention to the four arguments advanced in his written submissions. The first argument was related to the issue of jurisdiction. The events concerned had taken place in British Columbia. Unless it were to be said that the College of Physicians and Surgeons there had lower standards than those obtaining in the United Kingdom, the present proceedings would seem to have no purpose. At this point, the appellant appeared to accept that the respondents did have jurisdiction to handle this matter. However, he had expected them to impose the same sanctions as those imposed in Canada.

[13] Turning to the second argument advanced, the majority of the evidence before the panel had come from the consent agreement. The appellant had argued that the College of Physicians and Surgeons in British Columbia had been in the best position to deal with the appropriate remedies.

[14] Turning to the third argument, this was focused on the evidence of Dr Clare Gerarda. Reference was made to the transcript of proceedings on Day 3 at page 5. She had been the only witness who had given relevant evidence, but her evidence could not be the basis for a finding of serious professional misconduct. The appellant went on to refer to the transcript of proceedings on Day 5, page 31, the evidence of Dr James Zacharias. Recycling of medication had been quite common in Canada in the 1980s and 1990s. It had been accepted practice at the time of patient A's death. The situation in which it had occurred here had been in the nature of an emergency.

[15] The appellant went on to support the fourth argument stated in his written submissions. He said that it was important to have regard to the timescale of matters in this case. There had been changes in knowledge and in services available since the events in question. There had been no guidelines in British Columbia regarding the use of methadone. Standards had been introduced following these particular tragedies. If a doctor acted in good faith outwith the United Kingdom, he ought to be judged on general standards of medicine, not United Kingdom standards. The decision of the panel should be quashed. In answer to a question by the Court the appellant explained the circumstances in which he had signed the consent agreement.

Reply by counsel for the Respondents

[16] Counsel made certain points in reply. First, it was the case that the consequences of the conditions imposed by the panel were not the proper concern of this Court, as appeared from Raschid v The General Medical Council (CA), paragraph 17. Secondly, as regards the deaths of patients A and B the panel had made clear at page 10 of the decision document that it was not argued that the appellant had been responsible for the deaths of either patient A or patient B. That had been made clear by counsel for the respondents. Thirdly, the panel had had the consent agreement before it, in which it had been agreed by the appellant that certain conduct had been inappropriate. That consent agreement had been approved by the College of Physicians and Surgeons in British Columbia.

The decision

[17] It is appropriate to deal with the appellant's appeal as it was dealt with in argument before us, by focusing upon the four separate arguments set out in his written submissions. In relation to the first of these arguments two issues arose. The first was whether, having regard to the fact that during the period from 1998 to 2000 the appellant was practising in full service family general practice in British Columbia and during that time was neither registered or practising in the United Kingdom could be an objection to the proceedings before the panel. In our view that question must be answered in the negative. Section 36(1)(b) of the 1983 Act authorises the professional conduct committee to take action in respect of serious professional misconduct "whether while so registered or not". In our view, the appearance of these words in that sub-section make it completely clear that the committee was being given authority by Parliament to explore an issue of serious professional misconduct in relation to actions which may have occurred while the subject of the inquiry was not a registered person in the United Kingdom. In our opinion, there can be absolutely no doubt about that matter. The second issue arising from the appellant's first argument was whether section 36(1)(b) could relate to conduct which took place outside the United Kingdom. While the legislation itself is silent upon this matter, we have reached the view that the provision can relate to conduct outside the United Kingdom. We agree with the submission made to us by counsel for the respondents that the consequences of the view advanced by the appellant would be highly undesirable. It cannot be supposed that Parliament intended such consequences. It appears to us to be inconceivable that the legislation would not permit inquiry into the conduct of a registered person, with a view to seeing whether serious professional misconduct had occurred, simply because that conduct had occurred in some other state. If the contrary view were accepted it would mean that a practitioner whose conduct could be regarded as serious professional misconduct in some other jurisdiction could come to the United Kingdom and practice medicine here with impunity, it might be to the danger of the public. Such a result would undermine the objective of the respondents, enshrined in Section 1(1A) of the 1983 Act, which provides that the main objective of the respondents is to "protect, promote and maintain the health and safety of the public".

[18] While we recognise that there is no decision expressly affirming the view which we have taken, we regard the case of Marinovich v The General Medical Council as of significance and tending to support the view which we have taken. There the conduct in question had occurred in Darwin, Australia; yet no point of the kind taken by the appellant here was taken in that case. In The Office of Fair Trading v Lloyds TSB Bank plc and others a similar question arose in relation to the regulation of consumer credit in relation to overseas supply transactions. In that case the view was taken that what was involved was not objectionable as extra territorial legislation. It was not argued before us that anything in the 1983 Act amounted to extra territorial legislation, but for reasons similar to those stated in the case just mentioned, had any such argument been presented we would have rejected it. The whole purpose of the proceedings before the panel was the protection of the public in the United Kingdom; the fact that the conduct inquired into may have taken place in some other state does not detract from the acknowledged purpose of the legislation. Accordingly we reject the appellant's first argument.

[19] Turning to the appellant's second argument, it was to the effect that because the appellant had been subjected to disciplinary proceedings before the College of Physicians and Surgeons of British Columbia in respect of the conduct concerned, he could not properly be exposed to such disciplinary proceedings in the United Kingdom, particularly on what were described as more serious charges. As we understood it, the contention was that this amounted to what might be called double jeopardy. We reject that argument. It is quite plain that the purpose of the disciplinary proceedings in British Columbia was to subject the appellant's conduct to scrutiny there with a view to a decision being reached as to his fitness to practice there, or as to the conditions upon which he should be permitted to practice there. The purpose of the proceedings before the panel in the United Kingdom was different. Their purpose was to examine the appellant's fitness to practice in the United Kingdom, or to determine whether his right to practice here should be subject to conditions. In connection with this argument out attention was drawn to Regina (Redgrave) v Commissioner of Police of the Metropolis. We do not find that case of particular assistance, since the Court was there concerned with a situation where there had been criminal proceedings before the Magistrates Court, which were followed by disciplinary proceedings against the claimant, who was a police officer. That contrasts with the present case in which there have been two sets of disciplinary proceedings. Nevertheless, it was made clear by Simon Brown L.J. that the double jeopardy rule had no application save to other Courts of competent jurisdiction, and could not operate as between Magistrates Court proceedings and police disciplinary proceedings. To the extent that those two types of proceedings have different purposes, the case however does bear some similarity to this appeal. The same observations may be made concerning Thomas v The Council of the Law Society of Scotland. That case involved criminal and disciplinary proceedings. It was held that there could be no question of res judicata in such a situation. For all these reasons, we reject the appellant's second argument.

[20] Turning to the appellant's third argument, this focused upon criticism which he made of the evidence of Dr Clare Gerarda. Whatever may or may not be said concerning the qualifications of Dr Gerarda to give evidence, it is clear to us that the decision of the panel was not based exclusively upon what she had to say. It is evident that the substantial basis for the decision of the panel was the consent agreement into which, on legal advice, the appellant entered in connection with the proceedings before the College of Physicians and Surgeons of British Columbia. Paragraph 10 of the decision document refers to that agreement and sets out the matters which were the subject of admission. Furthermore, in paragraph 23 of the same document further admissions are recorded. Against that background of admission of fact, the task of the panel was to decide whether any of the admitted conduct amounted to serious professional misconduct. That was so even though the conduct may have simply been described as "inappropriate" in the consent agreement. Looking at what was said in Mallon v The General Medical Council, the panel was best placed to make a judgment as to the matter in question. The issue of whether conduct amounted to serious professional misconduct was pre-eminently a question for the panel. In the present case we are quite satisfied that the panel was entitled to hold that serious professional misconduct had occurred quite apart from anything said by Dr Gerarda. Accordingly we reject the appellant's third argument.

[21] Turning finally to the appellant's fourth argument, it involved the contention that the essence of the case presented regarding patient B was centred on the treatment and use of the drug there referred to. The appellant made the point that there was no documentary evidence that the use of this agent was harmful. However, we accept the argument presented on behalf of the respondents that the proof of actual harm is not a necessary ingredient in the making of a finding of serious professional misconduct. Once again, the admissions made in the consent agreement may be used as a foundation for the finding. Furthermore, as we have already observed, the fact that the consent agreement classified treatment as inappropriate did not prevent the panel from reaching the conclusion that serious professional misconduct had occurred upon the basis of the administration of such treatment. Furthermore, the fact that the respondents brought charges against the appellant different from those which had been brought in British Columbia can not be seen as a reason why the consent agreement entered into there could not be used as part of the evidence in the proceedings before the panel. For these reasons we see no merit in the appellant's fourth argument. In all these circumstances we have not been persuaded that the appeal should be allowed. Accordingly it is refused.