The Judicial Committee of the Privy Council Decisions

Privy Council Appeal No. 34 of 1996

Dr. Klaus Wagner Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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ORAL JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 8th October 1996

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Steyn

Lord Hoffmann

  ·[Delivered by Lord Browne-Wilkinson]

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1. This is an appeal by Dr. Klaus Wagner from a direction of the Professional Conduct Committee of the General Medical Council reached on 24th April 1996 that, by reason of convictions proved against him, Dr. Wagner's name be erased from the Register. The Committee further determined that it was necessary for the protection of members of the public that the appellant's registration should be suspended with immediate effect.

2. It is to be noted that the charge was brought under section 36(1)(a) of the Medical Act 1983 which founds jurisdiction in the Professional Conduct Committee to make the order they made if the doctor is found to have been convicted of a criminal offence.

3. Before the Professional Conduct Committee a certificate of conviction was produced.  It is unnecessary, from the way that the argument has gone before their Lordships, to go into the matter in any detail but the convictions were recorded on a plea of guilty entered on either the second or third day of the trial at Snaresbrook Crown Court on eight charges.  Five were counts of obtaining property by deception, two of attempting to obtain   property by deception and one relating to possession of a Class A controlled drug.  Dr. Wagner was sentenced to 15 months' imprisonment but was immediately released because he had spent time in prison pending trial.

4. The circumstances in which the convictions arose related to a large number of occasions on which Dr. Wagner was alleged to have obtained drugs from a chemist.  He used these drugs otherwise than for the purposes of his patients and to feed his own alleged addiction.  The facts of the convictions are not capable of being challenged on the appeal before this Committee and though Dr. Wagner has complained about the way in which his trial was conducted, a single judge refused him leave to appeal to the Court of Appeal (Criminal Division).  His conviction is final.

5. It follows that the only matter open to consideration by this Committee, as Dr. Wagner very fairly accepted, is the question whether the order erasing him from the Register can be shown to be plainly wrong.  It is unnecessary in the circumstances to go in great detail into the nature of the charges.  Suffice it to say that Dr. Wagner had on very many occasions, as was proved before the Professional Conduct Committee, obtained on prescription or by orders drugs of a kind which themselves are not controlled drugs but are capable of feeding an addiction.  On a number of times Dr. Wagner was arrested and there were found in his car and in his room a large amount of these drugs.  On one occasion, for example, a bottle of Oramorph which he had obtained on 27th April was found in his room the following day to have 330 milligrams missing - a quantity equivalent to 33 doses or an 8 day supply.  The evidence is substantial that, contrary to Dr. Wagner's case, he was certainly at some stage addicted to drugs of the kind that he had been unlawfully obtaining.

6. At the conclusion of his criminal trial the trial judge said:-

"Unless and until it is established that you are no longer a prey to any addiction from prescribed drugs, it would be unwise for you to attempt to practise as a doctor."

7. He also referred to the fact that Dr. Wagner was unable to admit to himself the existence and extent of his addiction during 1994 at a time when he was still practising as a doctor at a hospital on duty.  He said "that must, must it not, expose patients who are in your care to the risk of harm to them if you, under the influence of drugs, return to care for them".

8. At the hearing before the Professional Conduct Committee the Chairman in announcing the result of the hearing, having announced  that his  name was to be erased, determined that it was

necessary for the protection of the public and in Dr. Wagner's own best interest that his registration should be suspended with immediate effect and ordered accordingly.

9. It is therefore quite clear that both the trial judge and the Professional Conduct Committee thought that Dr. Wagner's behaviour in relation to the possession of drugs and the very substantial evidence of his drug addiction required for the protection of the public his immediate suspension from practice.

10. On the appeal to this Board, Dr. Wagner has presented his case with great moderation. It really comes down to one point: there is no evidence that his work, whether or not he was addicted, was unsatisfactory in relation to his patients.  Although no evidence of unsatisfactory medical care has been proved, Dr. Wagner has been unable to produce references showing his work was satisfactory.  Dr. Wagner says that it was not for him to prove that his work was satisfactory.  But that, in the view of this Board, is not the basis on which he has been erased.  What is said is that the evidence overwhelmingly indicates that there was a stage in which he was addicted to these drugs.  It may well be that he still is.  He did not produce evidence before the Professional Conduct Committee that he was not addicted.  If he wished to show that he was not still addicted then it was for him to prove it. In the view of the Professional Conduct Committee the risk of allowing a doctor who may still have an addiction to continue to practice is too great.

11. Dr. Wagner sought to draw an analogy with another doctor, Dr. A., who was addicted to heroin obtained on prescription and who was not erased but was referred to the Health Committee.  One difference amongst others between that case and the present is that Dr. A. admitted his addiction and was cooperative in relation to seeking a cure for it. Unhappily that is still not Dr. Wagner's position and therefore the analogy in relation to the position of Dr. A. carries him nowhere.

12. In the circumstances it seems to their Lordships that there is really no ground on which any successful appeal can be put forward against the decision to erase Dr. Wagner's name.  If and when he obtains insight into his position then he can seek treatment and seek to be restored to the Register.  Until that date the decision to erase his name must stand.

13. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the respondent's costs.

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