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Cite as: [2000] 1 AC 311, [1999] UKPC 16, [2000] AC 311, [1999] 3 WLR 541

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Roylance v. The General Medical Council (Medical Act 1983) [1999] UKPC 16 (24th March, 1999)

Privy Council Appeal No. 49 of 1998

Dr. John Roylance Appellant

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 24th March 1999

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Present at the hearing:-

Lord Slynn of Hadley

Lord Clyde

Lord Hobhouse of Woodborough

[Delivered by Lord Clyde]

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1. On 18th June 1998 the Professional Conduct Committee of the General Medical Council found the appellant guilty of serious professional misconduct and directed that his name be erased from the Register. The decision followed a hearing before the Committee which had lasted for 74 days and involved charges not only against the appellant but also against two surgeons, Mr. James Wisheart and Mr. Janaradan Dhasmana. All three of the charges were inter-related and concerned a number of cardiac operations carried out between 1990 and 1995 on very young children in the Bristol Royal Infirmary. The operations detailed in the charges were of two kinds, some were for the correction of atrioventricular septal defects ("AVSD") and the others were arterial switch ("AS") operations for the transposition of the great arteries. The charges arose out of a concern at the number of patients who had failed to survive their operations. At the end of the inquiry before the Committee the charges were found to relate to three AVSD operations carried out by Mr. Wisheart in July 1993 and in March and August 1994, and three AS operations carried out be Mr. Dhasmana in September and October 1993 and on 12th January 1995. This last was on a child named Joshua Loveday. Neither Mr. Wisheart nor Mr. Dhasmana has appealed.

2. The appellant was the District General Manager of the Bristol and Weston Health Authority from 1985 until 1991 when he became Chief Executive Officer of the United Bristol Healthcare NHS Trust. He held that post until his retirement on 20th October 1995. His responsibility extended over nine hospitals and some 6,500 staff. He had qualified as a doctor in 1954 and had been appointed a consultant radiologist in 1964. During the period of his service as General Manager and later as Chief Executive Officer he retained his medical registration and under the terms of his contract undertook one clinical session per week as a consultant member of staff. He had no specialist expertise in the particular area of paediatric cardiac surgery and medicine with which the charges were concerned. His position both as Chief Executive and as a registered practitioner has given rise to one of the particular problems in the case.

3. The Committee held that he was guilty of serious professional misconduct as a registered medical practitioner on the grounds, to put it shortly, of a failure to take action over the years when concerns were being raised about the excessive mortality of the infants and of a failure to take any steps in the case of Loveday to prevent the operation from proceeding. The matter of carrying out the operation in that case had given rise to particular concern and there had been a meeting of a number of surgeons, cardiologists and anaesthetists on 11th January 1995, the day before the operation, to discuss and determine whether it should proceed. The decision was taken to operate but the child did not survive.

4. The various matters raised by the appellant before their Lordships fall into four chapters. In the first place there was an allegation of bias on the part of the chairman of the Committee which was advanced in the course of the inquiry and renewed and developed before the Board. Secondly, there were a number of issues raised under reference to the facts found and established by the Committee. Thirdly, there was the problem which has just been mentioned of the existence and extent of any liability on the appellant for professional misconduct as a medical practitioner while he was at the same time the Chief Executive Officer of the hospital. Finally, a challenge was made against the sentence imposed by the Committee. Their Lordships now turn to consider each of these four matters in order. The first is the matter of bias.

5. One essential element in a fair hearing is the requirement that the decision-maker should be impartial. But while the proposition is easy to state the analysis and the application of it is more difficult. Impartiality calls for a state of mind which is free from any influences extraneous to the merits of the particular case, which is capable of a dispassionate inquiry and an objective judgment, and which is not turned aside by any motivation to favour one side as against the other. But the actual state of a person's mind is not always readily discoverable and absolute perfection may not be readily attainable. More subtly the decision-maker may be influenced quite unconsciously in the one direction or the other by extraneous considerations in ways which may be evident to or suspected by others but of which he is unaware. The insidious nature of bias makes its identification elusive. The law does what it can by recognising that bias may be apparent as well as actual. Thus proof of an appearance of bias may be as fatal as proof of a state of mind which is actually partial. That is consistent with and supported by the basic idea, enunciated by Lord Hewart C.J. in Rex. v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256, at 259 that "justice should not only be done, but should manifestly and undoubtedly be seen to be done". The apparent position is then as important as the reality and may be effective regardless of the reality. The confidence of the parties in the decision to be pronounced in their dispute and the confidence of the public in the processes of justice demand no less.

6. Bias may occur in a variety of forms. One situation is where the decision-maker has some particular connection with the dispute, in respect of the parties or the subject matter or the outcome, where it can be said that he is judge in his own case and where it may be supposed that he may have some motivation towards a particular result. This is the category of case which Lord Browne-Wilkinson has recently called "automatic disqualification" (Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [1999] 2 WLR 272, 281. It was long ago recognised that any direct pecuniary interest, however small, will disqualify a person from acting as a judge in the matter (Reg. v. Rand (1866) 1 L.R.1Q.B. 230 at p. 232). This kind of direct interest may be financial or proprietary, but where the interest is not of that kind it must be substantial and the assessment of that has to depend upon the particular circumstances of the case.

7. But bias may extend beyond the limits of what may be strictly included within the description of being judge in one's own case. The judge may have no actual bias and no interest in the case nor in its outcome, but nevertheless by such things as his behaviour, including his management of the hearing, there may arise a suspicion of partiality. Here the examples may merge into the wider complaint that there has been no fair hearing, but to the extent that they may suggest a partiality for the one side or the other they may properly be analysed as examples of bias.

8. In relation to this category of case there has been some debate on the formulation which expresses the test in the most appropriate words. In Reg. v. Gough [1993] AC 646 the preferred formulation of the test was that of a real danger of bias. That has been criticised on the grounds that it does not make it sufficiently clear that a possibility rather than a probability of bias may be fatal, that it stresses the idea of danger rather than the appearance of bias, and that in removing any reference to the view of the reasonable third party it may prefer the court's view of the risk to the court's view of the public view of the risk. Their Lordships were referred to Webb v. The Queen (1994) 181 C.L.R. 41 where the problem arose whether certain conduct on the part of a juror warranted the juror's disqualification. The court rejected the formulation proposed in Gough and preferred the greater latitude of the test of a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or the jury would not discharge their task impartially. Such an approach may minimise the risk of unnecessary damage to the reputation of the person concerned and make it easier for a member particularly of a lay tribunal to stand down without loss of face. It may reduce the embarrassment which a challenge on the ground of bias may understandably evoke not only for the person accused of bias but also for the person making the allegation. As was noted in Pinochet, the reasonable suspicion test has been adopted in Scotland (e.g. Doherty v. McGlennan, 1997 S.L.T. 444), but in the Pinochet case it was not necessary to carry out any review of the point.

9. The differences in the terminology used to formulate the test may not reflect any basic difference of approach once the intended import of the particular words used is understood. As Toohey J. observed in Webb v. The Queen supra at p. 88 in reference to the tests of "real danger" and "reasonable apprehension":-

"when proper emphasis is placed on the reasonableness of any apprehension likely to arise, that is, apprehension on the part of a fair-minded observer, there may be in truth little difference in the application of the two tests."

10. Their Lordships do not find it necessary to explore the principle of the matter further in the present case. Even adopting the formula preferred in Gough, they are satisfied that the appellant has failed to establish a case of bias.

11. At the outset of the hearing there was no evident cause for the allegation of bias. In particular there were no grounds for questioning the propriety of the President of the G.M.C. sitting on what was obviously an important inquiry as its chairman and no grounds for questioning his impartiality nor that of any member of the committee. On the tenth day of the inquiry, 30th October 1997, the chairman adjourned the inquiry slightly earlier than usual after having received an urgent telephone call. On the following day before the inquiry resumed counsel for all parties were privately informed by the Legal Assessor that a grandchild of the chairman was receiving treatment for a cardiac condition at the Royal Brompton Hospital and that the telephone call on the previous day had been occasioned by some complication of the child's condition. The inquiry then proceeded. On the twenty-first day, 10th December 1997, the chairman was asked by counsel representing the doctors involved in the inquiry to prepare a written statement regarding his personal position. It appears that this request was prompted by certain questions which the chairman had asked of a witness on the previous day. The chairman provided a statement and submissions were then presented on the matter of bias on the part of the Committee and the chairman. On the evening of the previous day certain reports from a Dr. Rigby had been placed before the Committee in anticipation of evidence being given by him. Dr. Rigby was a cardiologist working at the Royal Brompton Hospital. He had had some involvement with the chairman's grandchild. After the matter of the alleged bias was raised the Council decided that they would not call Dr. Rigby as a witness and they had the reports which had been circulated on the previous evening withdrawn. The Committee took time to consider the submissions which had been made to them and on 11th December 1997 the chairman announced that the hearing would continue with the Committee as then constituted.

12. Counsel for the appellant before the Board directed his submissions on bias at the chairman rather than the Committee and founded upon a combination of factors. He submitted that the consideration of cases of child mortality which lay at the heart of the inquiry must have stirred the personal emotions of the chairman whose mind may have been upon the state of his grandchild and who might have been tempted to side with the parents of the dead children. He pointed out that it was only chance which had disclosed the matter of the grandchild's illness and the link with Dr. Rigby. He founded upon a number of questions asked by the chairman of witnesses at the inquiry whose style and direction might reflect a lack of impartiality. And he stressed the cancellation of Dr. Rigby as a witness for the Council, as itself reflecting a recognition of the existence of bias. It was pointed out that the inquiry had aroused intense public interest. The public attendance, which on occasion included some children as well as the parents of the children who had died, added to the emotional tension of the occasion. Under such conditions it was all the more critical that the chairman, who was himself a public figure of importance and influence as head of the Council, must be seen to be beyond criticism.

13. Their Lordships are not persuaded that either in its individual strands nor in its totality the submission justifies a conclusion that the chairman was or might appear to be other than impartial. It is not suggested that the condition of the grandchild was such as to require either of the two treatments with which the inquiry was concerned, the AVSD or the switch operations, nor is there any suggestion that the treatment which the child was receiving was such as to incline the chairman towards any particular view of the management of the children at the Bristol Royal Infirmary. While the subject matter of the inquiry, conducted as it was in public, must understandably have imposed considerable emotional pressure on the participants, there is nothing to show that the chairman was under any further emotional pressure on account of his grandchild. On the contrary his recorded observations, particularly when he gave the Committee's decision on the matter of bias, appear to have been measured, controlled and objective. It was suggested that in the course of a passage of questions to Professor Vann-Jones the chairman had displayed an emotional response in referring to the deaths of babies. In the context the use of such expressions might well be seen as a human response to an approach which appeared to proceed on statistics, but however that may be it does not seem to have reflected a state of mind on the part of the chairman making it inappropriate for him to conduct the inquiry. Dr. Rigby's involvement with the grandchild had not been extensive and it seems that the chairman had not met or spoken with him about the child or even at all. While it had been anticipated that Dr. Rigby would be giving evidence and counsel had accordingly opened the case to the Committee on that basis and distributed the reports to them on 9th December 1997, the decision to dispense with his evidence can readily be understood as a course of abundant caution lest any appearance of partiality might be suspected. It is not to be seen as an admission of bias.

14. In considering the questions asked by the chairman it has to be recognised that the form or indeed the substance of questions asked by anyone sitting on an inquiry carrying out a judicial function of ascertaining the details of past events and forming an opinion as to the propriety or otherwise of what has been done or omitted to be done is entitled to a degree of latitude in the form and style of the questions which may be asked. The questions must of course be relevant to the issues before the inquiry. Whether they advance beyond the scope of matter which has been canvassed by questions already put to a witness must depend upon the nature of the inquiry and the circumstances. A public inquiry of an investigative character may have a wider freedom for questions than would be appropriate in a disciplinary hearing such as in the present case where the one party is seeking to establish allegations of misconduct within the scope of a charge whose terms have been notified to the party accused. So far as that consideration is concerned the appellant had the guidance of counsel vigilant to object to any questions which went beyond the limits of the hearing and the committee had the assistance of their legal assessor whose duties included advising them on the propriety and relevance of any questions which they wished to ask. Beyond the substance of the questions the shape and manner of their delivery should not too readily be taken to reflect a mind which is closed to argument or already resolved. The appearance of hostility may often mask a genuine anxiety to establish a true opinion. Questions which seem to express doubt or scepticism of the evidence may in truth be simply probing the strength of a position. Of course there can be cases where the behaviour of the decision-maker will proclaim an evident bias, as for example where sustained and persistent attempts are made to attack a witness, such that the decision-maker may seem to shed his robe as judge and take on the mantle of an advocate. But jealous as the law must be to secure the fairness of proceedings from any taint of a bias which may lurk even in the unconscious mind, it is necessary to beware against any oversensitivity in assessing the significance of questions asked of witnesses by the tribunal. The matter is one of degree calling for a cautious and balanced approach.

15. In the present case the chairman on various occasions asked questions which were clearly designed to clear his own mind on the substance of what a witness had said. It is not suggested that that kind of question is other than appropriate or indeed useful in the interests of a correct understanding. Of the passages which were criticised mention should be made at the outset of the questions which were asked by the chairman of the witness Dr. Brawn on the afternoon of the twentieth day of the inquiry. This passage seems to have been a critical factor in prompting the challenge on the matter of bias which was advanced on the following day. The questions related to the meeting on 11th January 1995 which, as has already been mentioned, was held in order to discuss whether the operation to the child Loveday should proceed. The chairman asked Dr. Brawn whether that meeting should ever have taken place at all and whether it was sensible or helpful to have a meeting about one patient where there was a more general uncertainty. He went further and asked whether "one could make an argument" that there should be certainty about the general policy and confidence about the whole position before entering into individual clinical decisions, and indeed whether that would be the safe way of proceeding.

16. These questions certainly raised a line of thought which was adverse to the appellant's case but that is far from establishing the existence of a closed mind. Indeed the presentation of the proposition as an argument points away from such a conclusion. Nor can any critical inference which could be drawn from the questioning be taken the length of indicating a determination that there had been serious professional misconduct. The fact of the meeting and the propriety of holding it had been canvassed already in the evidence. It had been seen by some as a reasonable course. Professor Farndon on the other hand had expressed the view in relation to that question that "it was a sorry pass that we came to". So the chairman was not seeking to open new ground but was looking for further opinion upon a question already covered.

17. But it was on the entirety of the questions by the chairman to the respective witnesses that counsel for the appellant relied and their Lordships were provided with references to the various passages in the record of evidence on which he founded. Having considered these their Lordships are not persuaded that either individually or in their entirety they constitute a real danger of bias. It is sufficient to refer to a few of the passages. One important issue for the appellant was whether the substance of the concerns which had been raised with him were about the existence of something wrong in the high level of mortality in paediatric cardiac surgery or simply about other issues such as the relative achievement of the hospital as a centre of excellence compared with other hospitals, the need for the relocation of the facilities for paediatric operations or the need for an additional surgeon on the staff. The appellant's position was that it was these latter concerns which were brought to him, not a serious or unacceptable level of mortality. One expression which the chairman used in reference to Professor Angelini, or later in a question to Professor Prys Roberts, in reference to Dr. Bolsin, was the expression "whistle-blower". It was submitted that that expression ran counter to the appellant's position on the substance of the concerns which had been raised. But their Lordships are not persuaded that from the use of that expression it can reasonably be concluded that the chairman had finally resolved that issue in his own mind adversely to the appellant's case. The expression was evidently taken up from something which was said in the opening of the case but its significance as used by the chairman should not be seen as sinister. So also in asking Professor Vann-Jones about lessons for the future the chairman is not be taken as having already concluded that there had been professional misconduct and that a remedy for that was required. Nor can he reasonably be taken to have reached a concluded view in his questioning Dr. Doyle about the reference he had made to an "unacceptable tragedy" nor in his use of the adjective "serious" to describe, in relation to the evidence of Miss Orchard, the low success rate of operations compared with elsewhere. It seems similarly an exaggeration to suggest that the chairman's indication in the course of questions to Dr. Hayes that the matter was one of individual and not collective responsibility destroyed the defence case.

18. It is understandable that the issue of bias was not raised until the twenty-first day, when the questions to Dr. Brawn taken along with the matter of the chairman's grandchild and a review of the chairman's earlier questions inspired an anxiety about his position. Their Lordships would place no significance on the failure to raise the matter at an earlier date. An inquiry which was clearly stressful and emotionally-charged could readily enhance such concerns. The printed record does not of course disclose the tone and manner of the spoken word but from all that has been put before their Lordships, including the particular passages just mentioned, they are not persuaded that either individually or collectively do the chairman's questions disclose a biased approach. Even taken along with the consideration of the chairman's grandchild they do not feel that he should have stood down from the inquiry nor that there was any unfairness in the conduct of the proceedings such as would warrant intervention.

19. The appellant sought to present a further argument levelled at the stage of the deliberations by the Committee on their final determination. Prior to the hearing of the present appeal the appellant sought from the Board an interlocutory order to have the shorthand notes of the in camera deliberations of the Committee disclosed. On 19th January 1999 their Lordships refused the application: The Times, 27th January 1999. At the hearing of the appeal the appellant tendered an affidavit by a Professor Dunn dated 8th January 1999 which he wished to use to support an argument that there had been some unfairness in the course of the committee's deliberations. Professor Dunn had written an article which was published in the British Medical Journal expressing a variety of concerns about the handling of the matter before the Professional Conduct Committee. That had evidently prompted a telephone call from someone who was understood by Professor Dunn to have reliable information about what had passed during the in camera deliberations by the Committee. The identity of the informant was not disclosed to their Lordships. The affidavit set out some material which had been provided by this person to Professor Dunn.

20. Their Lordships accepted the affidavit de bene esse in order to understand more fully the substance of its contents, but having done so and heard argument upon its admission have come to a clear view that it should not be admitted. Some assistance can be obtained from the consideration of the corresponding problem which has on occasion arisen in connection with juries. In that context the refusal of the court to inquire into the processes of a jury's determination was affirmed long ago in Straker v. Graham (1839) 4 M. & W. 721 and is now regarded as a settled rule of long standing (Reg. v. Miah [1997] 2 CrAppR 12). The same view was taken in Rex v. Brown (1907) 7 S.R. (N.S.W.) 290. Where a matter is raised which does not bear upon the process of deliberation or is not matter passing between the jurors outwith the presence or hearing of any third party, then it may be proper to investigate it, as where a clerk of assize entered into discussions with the jury (Rex. v. Willmont (1914) 10 Cr.App.R. 173) or where the verdict was delivered outwith the hearing of some of the members of the jury and did not accord with the totality of their views (Ellis v. Deheer [1922] 2 K.B. 113). The investigation of the use of a mobile phone by a juror unconnected with but during the course of the jury's deliberations, as occurred in Reg. v. McCluskey (1993) 98 Cr.App.R .216, is consistent with the principle. What passes in the mind of a judge or juryman in the exercise of their judicial functions is not a proper matter for inquiry (Reg. v. Gough [1993] AC 646, 672), and the same holds true of an arbitrator (Duke of Buccleuch v. Metropolitan Board of Works (1872) LR. 5 H.L. 418). So also in the context of the making of any corporate judicial decision the detail of discussion and the manner by which the decision is reached ought normally to remain confidential. In such a context it is essential for there to be opportunity for a frank exchange of views so that doubts and anxieties can be freely aired, opinions exchanged in the course of discussion with no necessary commitment to any final position, and eventually a conclusion reached, whether or not unanimously, with the confidence which can come from a mature, open and thorough consideration. It could only be in quite exceptional circumstances, if ever, that an inquiry could be permitted into such in camera discussions.

21. Not only is the appellant's application contrary to that general principle of confidentiality but it is the more inappropriate in the particular context of the Professional Conduct Committee. Unlike a jury the committee has the benefit of a legal assessor who, under rule 48(3) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (S.I. 1988 No. 2255), may retire with them. The assessor has an express duty under rule 3 of the General Medical Council (Legal Assessors) Rules 1980 (S.I. 1980 No. 941) not only to inform the Committee of any irregularity in the conduct of proceedings before them which comes to his knowledge, but also to advise them of his own motion where it appears to him that there is a possibility of a mistake of law being made. That provision appears wide enough to cover improprieties in the process of discussion and determination of the issues before the Committee. Furthermore, under rule 4 of the 1980 Rules the parties are entitled to be informed of any advice tendered after the Committee has begun to deliberate, so that in the circumstances of the present case the parties not only have the reassurance that the Committee has the opportunity for advice from the assessor, but have even the right to know what advice on matters of law has been given to them.

22. Beyond the matter of principle, and the more particular circumstances of the Professional Conduct Committee, there is nothing in the affidavit which would warrant any exceptional course being considered in the present case. The evidence which the affidavit contains about the deliberations of the Committee comes only by way of hearsay through Professor Dunn. Indeed the source of it to which he refers is only of a person likely to have direct knowledge of events concerning the case, so that the material may even be more remote than second hand. It does not present a criticism of such gravity as to justify the extraordinary step of inquiring into the working of the Committee in the course of their deliberations into the case. At best the material could, as was recognised in the course of the argument, only add weight to the argument if the principal submission on bias was otherwise sound. It cannot support the argument by itself. For all these reasons their Lordships are not persuaded that the affidavit should be admitted nor that this area of the argument should be entertained.

23. Their Lordships now turn to the second chapter of the submissions which relates to certain attacks which were made on the findings in fact. Under Rule 27(2) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (S.I. 1988 No. 2255) the Committee require to make findings of fact in order to ascertain whether they are sufficient to support a finding of serious professional misconduct. In the following stage of the proceedings they have to determine whether there has been serious professional misconduct and that stage may involve the further leading of evidence as well as the making of further submissions. It was not argued that the rules had not been complied with, and it was accepted that it was proper for the Committee to use the form of the charge as the basis for their findings, amending it so as to reflect their findings, but of course not making any changes which would enlarge the substance of the charge. Criticism was, however, directed not only at the sufficiency of the evidence supporting certain of the facts but also at what were claimed to be ambiguities in the statement of facts. Here comparison was made with the formulation of the eventual decision of the Committee which gave greater precision on certain particular matters. It was submitted that there was some unfairness on the appellant in the adding of particular detail in the final determination. While the criticisms which were advanced fell into different categories it is convenient to take the matter in the order of the facts as set out in the amended charge.

24. Heads 1 to 3 of the charge dealt with the appellant's appointment and the operations carried out by Mr. Wisheart and Mr. Dhasmana. These heads were admitted and are not controversial. Head4 is prefaced by the allegation that the appellant was made aware by professional colleagues at the Hospital of "concerns about the mortality and/or morbidity levels in paediatric cardiac surgery" there. It was submitted that that finding was ambiguous. It could simply relate to a concern that the standard of the service provided by the Hospital did not meet the ambition to be a centre of excellence. The appellant indeed explained that his understanding of the concerns was that the hospital was no longer one of the best. The Committee's final conclusion however was that he had been made aware of "excessive mortality" and the complaint is now made that that should have been plainly and explicitly found in the facts if it was to be the basis for the final determination. But the rules provide that the findings of fact are to be findings which are capable of supporting a finding of serious professional misconduct. Other facts require to be deleted. The only relevance of the finding must be that it would bear on misconduct and a mere concern about the ranking of the hospital in the scales of excellence would hardly qualify for such a finding.

25. Challenge was then made upon each of the findings relating to the specific occasions through which his awareness was alleged to have been acquired. The first of these, head 4a, was a letter from Dr. Bolsin to the appellant dated 25th July or 7th August 1990 written in the context of an application for trust status on cardiac surgery. Near the end of the letter, after comments on two matters of alleged inaccuracy in the appendix to the application, the writer refers to the "unfortunate position" of mortality for open heart surgery on patients under one year of age, which is described as one of the highest in the country, and advises that the problem should be addressed. It was strongly argued that there was nothing there to warn the appellant that there was an unacceptable level of deaths occurring, and he stated in evidence that that was not the message which he took from it. The letter can be read as simply advising that standards could be improved. But it can also be read as raising a matter of serious criticism of the operations in question. Indeed the reception which it was given at the time by the appellant, who telephoned to Dr. Bolsin about it, and by Dr. Dean-Hart, then chairman of the Medical Committee, and Mr. Wisheart who summoned Dr. Bolsin to see them, suggests that such an interpretation was the correct one. It was submitted that the letter was written some three years before the particular periods at which the Committee held that action should have been taken, and there was nothing to follow it up for a considerable period thereafter. But while the level of concern may at that early stage have been relatively low, it did continue. The attention of their Lordships was directed to a letter of 20th November 1991 from the Regional General Manager to the appellant expressing concern about the quality of performance of the cardiac unit and the reply by the appellant on 3rd January 1992, which for the most part consisted of a quotation of what Mr. Wisheart had said to him. At the least, the Committee were entitled to treat the letter from Dr. Bolsin in 1990 as an early intimation to the appellant of seriously high levels of mortality and their decision so to construe it cannot, as counsel for the appellant submitted, be regarded as perverse.

26. Head 4b relates to a meeting with Professor Prys-Roberts on 14th February or 5th March 1992 "at which he referred to but did not produce data". The problem here is that it is not clear whether the appellant was shown figures which would have alerted him to the existence of excessively high mortality levels. There was conflicting evidence on the point and a question regarding what figures, if any, would have been available at that date. It was submitted that figures could not have been produced because the audit, which was carried out by Dr. Bolsin and Dr. Black, and the results of which were shown to Professor Prys-Roberts, was carried out in or after June 1992. The Committee added the words quoted above in inverted commas to represent their conclusion on the matter. The formula which they adopted leaves the detail of the point unresolved. The appellant argued that the point is one which should not have been left in ambiguity. There was clearly a difficult problem here in the resolution of the conflict in the evidence. But the critical matter here is that Professor Prys-Roberts' evidence was to the effect that he was telling the appellant that matters were probably worse than had been brought to his attention and "one could not sweep this under the carpet". That evidence was contradicted by the appellant who explained that there had been no mention of information which was a cause for concern about excessive deaths. The Committee required to resolve that conflict. What they must have done was to prefer the evidence of Professor Prys-Roberts to that of the appellant on this point and their Lordships have no grounds for challenging that conclusion. In these circumstances the question of precisely what data was produced is not of prime importance.

27. Two of the detailed items, heads 4d and 4f, depend critically on the evidence of Professor Angelini. The first of these related to two meetings between Professor Angelini and the appellant between December 1993 and March 1994. According to the Professor he was telling the appellant of the unacceptably high level of mortality. According to the appellant that was not mentioned; there were discussions about the appointment of a new surgeon. The second related to a meeting on 3rd March 1994 with the appellant at which Professor Angelini brought Dr. Monk with him. Dr. Monk was, however, not called as a witness. Professor Angelini's recollection was that he was again expressing his concerns over the high levels of mortality and morbidity in paediatric cardiac surgery, but the appellant's evidence was that the discussion was about the new appointment of a surgeon and the siting of the theatre for the paediatric operations. Counsel for the appellant pointed to various contradictions and inconsistencies in Professor Angelini's evidence. But plainly the Committee must have preferred Professor Angelini's evidence to that given by the appellant and their Lordships can see no good reason why they were not entitled to do so.

28. The remaining subparagraph which remained live was head 4g. This was a letter from Dr. Doyle, senior medical officer with the Department of Health, to Professor Angelini dated 21st July 1994. In this letter the writer refers to the level of mortality in neonatal and infant cardiac surgery as a matter for very great concern:-

"If the position proves to be as reported to me, the excess deaths are in themselves a tragedy. If the problem has been recognised and adequate remedial steps have not been taken, it becomes an unacceptable tragedy ..."

29. The first question here is whether the appellant ever saw that letter. He saw a copy of the letter written on 19th August 1994 by Professor Angelini in reply to it , but he denied having seen the letter itself. However, on 12th September 1994 he wrote to Dr. Doyle stating that "[Professor] Gianni Angelini … has copied to me the correspondence he has recently had with your department". The question then arises whether the word "correspondence" was intended to include the critical letter. On that point the Committee were perfectly entitled to find that the letter was before the appellant in September 1994. The Committee stated in the findings that he was aware of the letter, but the complaint is made that that does not face up to the question whether or not he was aware of the contents of the letter. In their final conclusion the Committee refer to the letter stating expressly that the contents of it were known to him. But in the context of the charge it was sufficiently obvious that the substance of the letter was being alleged to be within his knowledge. The more specific wording in the decision of the Committee simply enlarges on what they had clearly already found.

30. Paragraphs 5 and 6 of the charge set out the failures alleged against the appellant in relation to the operations carried out by Mr. Wisheart and Mr. Dhasmana respectively, other than the operation on the child Loveday. Counsel for the appellant argued that the findings of failure to act in relation to the operations prior to the case of Loveday were lacking in specification and that details should have been given of what should have been done and when it should have been done. Their Lordships are not persuaded that any particular specification was required here. External advice and independent inquiry were two reasonably obvious courses which might have been taken. But the substance of the duty was not a matter which necessarily called for evidence before a Committee well able from their own experience to assess what should or should not be done as a matter of general professional practice. Criticism was also made of the extra detail which appeared in the text of the final determination, such as the addition of the word "excessive" in relation to the mortality of patients, and the express reference to the "contents" of the letter of 21st July 1994 which was the subject of head 4g. As their Lordships have already indicated such embellishments arose directly out of the earlier findings when read in their context and cannot be condemned as unfair or improper.

31. Head 7 of the charge, which with some deletions and the addition of one word became a further part of the findings, relates to the child Loveday. Curiously the Committee added the words "as a registered medical practitioner" to the statement of the failures in relation to the earlier operations but omitted to do so in relation to head 7. That may well have been oversight, but is of no substantial significance in so far as the whole charge was prefaced by the words "That, being registered under the Medical Act", which indicated quite clearly that it was as a registered medical practitioner that he was being brought before the Committee. But it helps to focus the distinct problem which arises in relation to the Loveday case.

32. The facts stated in head 7 in relation to which the failures to take action arise were as follows; that an AS operation was scheduled to be performed by Mr. Dhasmana on Loveday on 12th January 1995; that in early January 1995 Professor Angelini expressed concern to the appellant about the operation going ahead and suggested that if there was urgency the child should be referred to Birmingham; that on 11th January 1995 Dr. Doyle of the Department of Health expressed concern to the appellant about the operation going ahead; it appears that this was done in a telephone call to the appellant on the evening of 11th January 1995 advising him that the operation should not proceed; that the operation was performed on 12th January 1995 and the child died. The charge then alleged that the appellant took no adequate steps to prevent the operation going ahead, failed to take adequate steps to secure the patient's referral to another centre for surgery if his condition so required, did not pay due regard to the safety and best interests of the patient, and:-

"… took no adequate steps to act upon the prior information and concerns imparted to you as Chief Executive Officer by

i. Taking appropriate advice other than from the Medical Director and other clinicians whose acts or omissions were in question,

ii. Taking advice externally and in particular bringing in external assessment by other clinicians or the Department of Health."

33. The reference to the "prior information" requires account to be taken of the whole history back to 1990 in so far as it relates to the information imparted to the appellant as Chief Executive Officer. The evidence bearing on that matter has for the most part already been considered. The starting point can be taken to be the letter written by Dr. Bolsin to the appellant on 25th July or 7th August 1990, referred to in head 4a. There was the meeting in February or March 1992 between Professor Prys-Roberts and the appellant at which the Committee must have accepted the latter's attention was drawn to the serious levels of mortality. It may be noted that it was not long after that that a succession of articles began to appear in the periodical Private Eye, drawing public attention to the levels of mortality. These appeared in May, July, and October 1992. The evidence indicated that Dr. Roylance was aware of these, but the Committee did not specifically mention the point and it may be that this was not regarded of significance. Between December 1993 and March 1994 there were the three meetings between Professor Angelini and Dr. Roylance, the last being attended by Dr. Monk, at all of which the Committee must have held that the appellant was made aware of the high levels of mortality. Then there was the letter from Dr. Doyle of 21st July 1994 the contents of which the Committee held must have been seen by the appellant.

34. The foregoing represents at least the principal facts on which the charge was eventually held to be established. Having considered the submissions made with regard to them it seems to their Lordships that the Committee were entitled to reach these findings on the standard of proof beyond reasonable doubt which was accepted as appropriate. The findings seem to their Lordships to have been set out with sufficient clarity and the extra details added in the final statement of the decision seem to apt and proper. Counsel for the appellant presented an argument to the effect that, in the same way as the Board had decided in Hossack v. General Dental Council (unreported) Privy Council Appeal No. 80 of 1996, 16th April 1997; if one part of the findings should fail the whole determination would require to be quashed. Since their Lordships have not been persuaded that any part of the findings in fact are defective that point does not arise for decision.

35. In the light of the facts their Lordships turn next to the third chapter of the submissions and in particular to the matter of professional misconduct. The issue here arises on account of the fact that the appellant undoubtedly owed duties to protect patients in his capacity as Chief Executive Officer. But it is not in that capacity that he came before the Professional Conduct Committee. His principal line of defence was that he owed no duty as a doctor. The problem is whether, given the fact of his being a registered medical practitioner in addition to his appointment as Chief Executive Officer, he had any duties in respect of the former capacity in addition to his undoubted duties in respect of the latter.

36. The appellant's position was set out in its essentials in his letter of explanation of 21st April 1997. His primary submission was there stated to be that during the period in question there had been no exercise by him of his professional judgment as a doctor. In relation to the meeting regarding the proposed operation on the child Loveday he stated that it was beyond his competence to interfere. His position was explored in his evidence and in the course of that he explained that he had a responsibility for patient safety as Chief Executive Officer and not as a doctor. Indeed he could not understand how in exercising the responsibilities of a Chief Executive he could have any additional responsibility in light of his professional knowledge and registration. When asked whether he regarded himself as having any duties as a doctor in relation to paediatric cardiac surgery during the period in question he replied that he had given the matter considerable thought and was obliged to say that the fact that he was a doctor was quite irrelevant. If the appellant's proposition is carried to its full extent he should have challenged the jurisdiction of the Committee to hear the case against him at all. But it is not disputed that the Committee had jurisdiction to try the case. In these circumstances the question may not be about the existence of a duty but about the extent of the duty. But however that may be, in deciding whether the view of his position which the appellant adopted was correct it is necessary to consider the concept of serious professional misconduct.

37. The expression "serious professional misconduct" is not defined in the legislation and it is inappropriate to attempt any exhaustive definition. It is the successor of the earlier phrase used in the Medical Act 1858 "infamous conduct in a professional respect", but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared on Professional Conduct and Discipline: Fitness to Practise, December 1993 indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Counsel for the appellant argued that there must be some certainty in the definition so that it can be known in advance what conduct will and what will not qualify as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover the Professional Conduct Committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases and their skill and knowledge requires to be respected. However the essential elements of the concept can be identified.

38. Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with as a separate basis for a direction by the committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the respective words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word "professional" which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word "serious". It is not any professional misconduct which will qualify. The professional misconduct must be serious. The whole matter was summarised in the context of serious professional misconduct on the part of a registered dentist by Lord Mackay of Clashfern in Doughty v. General Dental Council [1988] A.C. 164 at 173:-

"In the light of these considerations in their Lordships' view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious. On an appeal to this Board, the Board has the responsibility of deciding whether the committee were entitled to take the view that the evidence established that there had been a falling short of these standards and also entitled to take the view that such falling short as was established was serious."

39. In the present case the critical issue is whether, if there was misconduct, the misconduct was "professional misconduct". As counsel for the respondent pointed out it is not simply clinical misconduct which is in issue. Professional misconduct extends further than that. So it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient. Cases here may occur of a serious failure to meet the necessary standards of practice, such as gross neglect of patients or culpable carelessness in their treatment, or the taking advantage of a professional relationship for personal gratification.

40. But certain behaviour may constitute professional misconduct even although it does not occur within the actual course of the carrying on of the person's professional practice, such as the abuse of a patient's confidence or the making of some dishonest private financial gain. In Allinson v. General Council of Medical Education and Registration [1894] 1 QB 750, 761, infamous conduct in a professional respect was held to be established where a doctor by public advertisement had warned the public to avoid other practitioners and recommended them to apply to himself. Lord Esher M.R. adopted (at pp. 760-761) the definition which Lopes L.J. propounded in the same case of "at any rate one kind of conduct amounting to ‘infamous conduct in a professional respect’". The definition was that such conduct could be established "If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency". Lord Esher M.R. then observed, p. 761:-

"The question is, not merely whether what a medical man has done would be an infamous thing for any one else to do, but whether it is infamous for a medical man to do it ... There may be some acts which, although they would not be infamous in any other person, yet if they are done by a medical man in relation to his profession, that is, with regard either to his patients or to his professional brethren, may be fairly considered ‘infamous conduct in a professional respect’, and such acts would, I think, come within s. 29."

41. But that definition is clearly not, and was not intended to be, exhaustive or comprehensive.

42. To take the point a stage further, serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character. An example can be found in A County Council v. W. (Disclosure) [1997] 1 F.L.R. 574, where a question arose whether the alleged sexual abuse by a father of his daughter, the father being a medical practitioner, could constitute serious professional misconduct. It was argued that any sexual abuse was too remote from the father's occupation as a doctor since it was outwith any medical treatment of a child. But Cazalet J. held (at p. 581) that "it seems to me that this doctor can be said, if he has sexually abused his daughter, to have demonstrated conduct disgraceful to him as reflecting on his profession and/or indeed conduct disgraceful to him as a practising doctor". What is important here is not only the fact that disgraceful behaviour remote from the carrying on of a professional practice may constitute serious professional misconduct, but also that the duty of a doctor to himself, if not to his profession, exists outwith the course of his professional practice. One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.

43. But moral turpitude is not the only kind of case outwith the conduct of a medical practice which may constitute serious professional misconduct. In Marten v. Royal College of Veterinary Surgeons' Disciplinary Committee [1966] 1 Q.B. 1 a farmer who was also a veterinary surgeon was found to have failed to give adequate care for animals on his farm. He was not guilty of any moral turpitude, but his conduct was held to constitute conduct disgraceful to him in a professional respect. Lord Parker C.J. observed, at p. 9:-

"But if the conduct, though reprehensible in anyone is in the case of the professional man so much more reprehensible as to be defined as disgraceful, it may, depending on the circumstances, amount to conduct disgraceful of him in a professional respect in the sense that it tends to bring disgrace on the profession which he practises. It seems to me, although I do not put this forward in any sense as a definition, that the conception of conduct which is disgraceful to a man in his professional capacity is conduct disgraceful to him as reflecting on his profession, or, in the present case, conduct disgraceful to him as a practising veterinary surgeon."

44. Marten was found on account of his work as a farmer to be guilty of conduct disgraceful to him as a practising veterinary surgeon.

45. In the present case it is not suggested that the appellant's conduct was in the class of moral turpitude or of so outrageous a nature as to bring the profession into disrepute. But that does not mean that the appellant had no duty to have regard to his own capacity as a registered medical practitioner. He was both a registered medical practitioner and chief executive of a hospital. In each capacity he had a duty to care for the safety and well being of the patients. As chief executive that duty arose out of his holding of that appointment. As a registered medical practitioner he had the general obligation to care for the sick. That duty did not disappear when he took on the appointment but continued to co-exist with it. There was a sufficiently close link with the profession of medicine in the case of the appellant as chief executive of a hospital in respect of patients at the hospital. Something of a parallel link can be traced in Marten between the profession of veterinary surgery and the care of animals on a farm. Counsel for the appellant sought to argue that any criticism of the appellant derived solely from his holding office as a Chief Executive Officer. But while the failures may as matter of fact be the same, the gravity of the criticism may be increased by him being at the same time a medical practitioner.

46. Their Lordships would add in relation to the generality of the problem that the philosophy which seeks to divorce the administration from the medical care so as to leave the administrator free from any responsibility for deficiencies in the care of the sick cannot be sound. The care, treatment and safety of the patient must be the principal concern of everyone engaged in the hospital service. The medical staff will have the specialist expertise in their various skills. But the idea of a gulf between the medical practitioners and the administration connected by some bridge over which the appellant had passed "from us to them", as appeared in the course of the argument to be a possible aspect of the appellant's case, must be totally unacceptable if the interest of the patient is to remain paramount. The enterprise must be one of co-operative endeavour.

47. Once it is clear that a duty existed the question remains in the present case what the extent of the duty was in the circumstances. In ordinary circumstances there is no doubt that a medical practitioner who holds the office of Chief Executive Officer of a hospital is perfectly entitled to leave the day to day clinical decisions to the professional staff of the hospital. His duty as a medical practitioner is adequately performed by such a course. But there may occur circumstances in which more may be required of him. In such circumstances his medical skill and knowledge are undoubtedly relevant. Even if he does not have the specialised expertise of the particular area of medicine in which the problem arises, his general knowledge as a doctor will be of service, as for example by enabling him more readily to ask the relevant kinds of question, such as in the present case when was the child last examined and what was the degree of urgency for the operation.

48. The present has been held to be a case where the professional medical duty required action. The Committee noted the particular circumstances of the history of growing anxiety, of the facts which they found of his knowledge of the concern, especially in the letter of 21st July 1994, of his power to inquire and to intervene. They affirm that as a registered medical practitioner the appellant had a duty to act to protect patients from harm. They held that:-

"Your own evidence demonstrates that you chose, over a long period, to ignore the concerns which were being brought to your attention, preferring to leave these matters to the consultants concerned. Yet, faced with information suggesting that children were being placed unnecessary at risk, you took no adequate steps to establish the truth. You knew that your medical director was at the centre of many of these concerns, yet you took no adequate steps to obtain impartial advice from appropriate specialists."

49. Essentially it was the appellant's own belief that his being a registered practitioner was irrelevant that was the flaw in his defence.

50. In relation to the particular case of Loveday the Committee pointed out that the appellant had been urged by Professor Angelini and Dr. Doyle of the Department of Health not to let the operation go ahead, and that he had decided with Mr. Wisheart that an external review was necessary. They continued:-

"Despite that, without taking appropriate external advice, without making independent inquiries of your own, and without exploring alternatives for safeguarding Joshua Loveday's interests, you took no steps to prevent the operation from proceeding. By your failure to take adequate action, you failed to safeguard Joshua Loveday's proper interests."

51. In their Lordships' opinion the Committee were entitled in the whole circumstances to find serious professional conduct established.

52. Finally, the appellant submitted that the Committee should not have adopted the most severe method of disposal open to them and that in light not only of the circumstances of the case but of the appellant's own undoubted record of achievement some lesser course would have been just. Their Lordships recognise the force of this submission, but they also note the careful and discriminating view which the Committee expressed in delivering their final determinations in each of the three cases and in the particular case of the appellant they expressly noted the evidence of his contributions to the Health Service over a long period. The decision on disposal is very much a matter for the judgment of the Committee, working through the alternatives presented in Rule 31 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules. It has long been recognised that the Board should be very slow to interfere with the discretionary power to impose a sentence of erasure (McCoan v. General Medical Council [1964] 1 WLR 1107). Their Lordships would not interfere with the disposal unless they were satisfied that the decision was clearly unjust. They have not been persuaded that there was anything improper in the order that the name of the appellant be erased from the Register.

53. For the foregoing reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant should pay the costs of the appeal.

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