The Judicial Committee of the Privy Council Decisions

rivy Council Appeal No. 16 of 1996

 

Dr. Ashwini Kumar Singh   Appellant

v.

The General Medical Council  Respondent

 

FROM

 

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

 

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

OF THE 25th June 1996 Delivered the

9th July 1996

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Present at the hearing:-

Lord Jauncey of Tullichettle

Lord Lloyd of Berwick

Lord Hoffmann

  ··[Delivered by Lord Jauncey of Tullichettle]

 

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1. This is an appeal by Dr. Ashwini Kumar Singh, a general practitioner in South East London, against a determination of the Professional Conduct Committee of the General Medical Council on 12th March 1996 that he was guilty of serious professional misconduct.  The Committee directed that for a period of twelve months his registration should be conditional.  At the conclusion of the hearing their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed, for reasons to be given later, and ordered the appellant to pay to the respondent their costs of the appeal.  Their Lordships' reasons for their advice now follow.

 

2. At the start of the hearing Dr. Singh, who appeared on his own behalf, applied for an adjournment.  The hearing was originally fixed for 25th July but Dr. Singh subsequently intimated that this date was unsuitable as he required to be in India that week with his mother, who was to undergo an operation.   On  Wednesday,  19th June Dr. Singh was informed that the following Tuesday, 25th June, was unexpectedly available which would resolve the problem of his attendance on his mother, but he indicated that that date was also unsuitable.  On their Lordships' instructions the case was nevertheless put down for hearing on 25th June when Dr. Singh appeared and maintained that he required more time to instruct solicitors to conduct the appeal on his behalf.  The following facts relevant to this application emerged from information provided by Dr. Singh, Miss Sullivan, who appeared for the General Medical Council, and from documents placed before the Board.

 

3. At the start of the hearing before the Professional Conduct Committee Dr. Singh was represented by senior and junior counsel who submitted that since the High Court, on application for judicial review, had quashed the decision of the Family Health Service Appeals Unit relative to the appellant's treatment of one of the two patients figuring in the charges against him, the matter should be remitted back to the Preliminary Proceedings Committee for reconsideration of their determination to refer this matter to the Professional Conduct Committee.  This submission was rejected by the Professional Conduct Committee whereupon senior counsel applied for a stay of the proceedings in order that application might be made to the Divisional Court for an order of prohibition. This application was refused whereupon Dr. Singh's legal representatives withdrew, senior counsel having informed the Committee that his instructions were limited to making legal submissions. Dr. Singh then applied for an adjournment on the ground that he needed further finance and proper legal representation.  However it emerged that between 1st November 1995 and 8th March 1996 he had at various times instructed no less than five different firms of solicitors to act for him.  The Professional Conduct Committee refused his application.

 

4. So far as Dr. Singh's present application for an adjournment is concerned it is significant that although he has been in touch with three different firms of solicitors since his appeal was lodged on 29th March he has not yet instructed any firm to act.  The following excerpt from his letter of 11th May 1996 to the Registrar may have some relevance:-

"Up to date I do not have a firm of solicitors or a solicitor approved by the Law Society who may and will act as per my instructions and as required to pursue the case properly."

 

5. In their Lordships' view Dr. Singh has had ample time and opportunity to instruct legal advisers to act on his behalf and they can see no justification for granting an adjournment.  Dr. Singh is no stranger to litigation.  Apart from his successful application for judicial review of the decision of the Family Health Service Appeals  Unit,  he currently has applications pending for judicial

review of the decision of the Preliminary Proceedings Committee and of the Professional Conduct Committee in relation to these proceedings, supported by very substantial documentation which he has prepared and which he produced before the Board.  He has also made an application relative to these matters to the European Court of Human Rights.

 

6. The two charges against Dr. Singh related to two patients whom it is convenient to refer to as Mrs. T. and Mr. B. In relation to Mrs. T. it was alleged inter alia that, having visited her at home without his medical bag, he carried out an inadequate physical examination and prescribed drugs which were inappropriate and potentially dangerous.  In relation to Mr. B., who was terminally ill with cancer, it was alleged that he failed to make adequate arrangements for his care following upon an urgent request to attend and administer further pain relief. The Professional Conduct Committee determined that he was guilty of serious professional misconduct in relation to both charges.

 

7. Before this Board Dr. Singh challenged the determination and direction of the Professional Conduct Committee on a multiplicity of grounds which were set out in Grounds of Appeal dated 11th May. Many of these grounds related to conclusions drawn by the Committee from evidence before it with which conclusions this Board would only in the most exceptional circumstances interfere. Other grounds related to matters of no relevance to this appeal.  There were however a number of grounds involving possible questions of law to which their Lordships must now advert:-

 

(1)The proceedings of the Preliminary Proceedings Committee were unlawful inasmuch as no affidavit or statutory declaration had been furnished to the Registrar as required by rule 6(2) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (S.I. 1988/2255) ("the Rules").  Rule 6(1) provides that where the Registrar of the General Medical Council receives a complaint raising possible questions of serious professional misconduct he shall submit it to the President. 

 

8. However, rule 6(2) provides inter alia:-

"Unless the complaint or information has been received from a person acting in a public capacity the matter shall not proceed further unless and until there has been furnished to the satisfaction of the President one or more statutory declarations or affidavits in support thereof;"

 

9. In the present case the complaint received by the Registrar was from  the   Family  Health  Service Appeals  Unit  which is demonstrably a "person acting in a public capacity" as defined in rule 2.  It follows that no affidavit or statutory declaration was required to support the complaints.

 

(2)Since the complaints submitted to the Registrar related to events occurring more than two years prior thereto he was not entitled to receive them in view of the provisions of rule 14(b)(ii) which so far as relevant are as follows:-

"14.  Notwithstanding anything in the foregoing rules, where

...

(b)in any case relating to conduct

(i)the President decides that no reference to the Committee need be made; or

(ii)the Committee determine that no reference for inquiry shall be made,

and the Registrar ... in a case falling under (b) above, within two years of the decision or determination receives information or a complaint as to the conduct of the practitioner, the President may direct that the original ... complaint be referred, or referred again, to the Committee, ..."

 

10. This rule applies to a case where the President or the Preliminary Proceedings Committee have decided that no further steps need to be taken in relation to a complaint and a further complaint relating to the conduct of the practitioner is received within two years.  It has nothing to do with a case such as the present where the President and the Preliminary Proceedings Committee have decided that inquiry into a complaint shall be pursued further. Their Lordships were referred to no rule which imposed a time limit on the investigation of complaints.

 

(3)The complaint from the Family Health Services Appeals Unit was neither served on nor intimated to the appellant.  Their Lordships were referred to no rule which required this to be done.

 

(4)The Preliminary Proceedings Committee failed to consider the case referred to them by the President prior to referring it to the Professional Conduct Committee, contrary to rule 11(1) which requires them to consider the case and make a determination.  This proposition lacks foundation.  It is apparent from letters from the General Medical Council to Dr. Singh dated 7th December 1994 and 7th April 1995 that the Preliminary Proceedings Committee had considered the matter not only once but twice namely on 19th January 1995 and 6th April 1995.

 

(5)The Professional Conduct Committee acted unlawfully in failing to disregard the second charge relating to Mr. B. in view of the quashing by the High Court of the Family Health Service Appeals Unit's decision thereanent.  Their Lordships were not informed of the terms of the quashed decision but it seems probable that it had some financial implication.  Be that as it may the Professional Conduct Committee as its name suggests is concerned with professional conduct.  Its jurisdiction to consider this matter is wholly unaffected by the decision of another body charged with different functions relating to the same medical practitioner.  Whatever other functions the Family Health Service Appeals Unit may possess it is not charged with the duty of determining whether or not a medical practitioner is fit to practise.

 

(6)The Professional Conduct Committee had failed to apply the correct test in determining what amounted in law to serious professional misconduct.  If some doctors stated that a form of treatment was acceptable a doctor using that form could not be guilty of serious professional misconduct.  The Committee concluded that Dr. Singh's conduct in relation to the two patients "fell seriously short of the standards which patients are entitled to expect of their doctors".  These findings were made by eminent medical practitioners and fully justified their conclusion that Dr. Singh was guilty of serious professional misconduct.  (See Dr. David Noel McCandless v. The General Medical Council [1996] 1 WLR 167).

 

11. Their Lordships accordingly have no hesitation in concluding that there was no substance in such of the grounds of appeal as were relevant for their consideration.

 

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