The Judicial Committee of the Privy Council Decisions

Omar v. The General Medical Council (Medical Act 1983) [1999] UKPC 7 (15th February, 1999)

Privy Council Appeal No. 55 of 1998

Dr. Magdy Omar Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th February 1999

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Lord Nicholls of Birkenhead

[Delivered by Lord Clyde]

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1. Dr. Magdy Omar was convicted on 13th February 1996 of an indecent assault on a female patient. The assault occurred on 2nd June 1995. On 16th June 1995 the patient had returned to see Dr. Omar and complained to him about his conduct. The conversation was tape-recorded and in the course of it Dr. Omar made certain admissions. Later the same day he was interviewed by the police and again made certain admissions. These admissions were heavily relied upon by the Crown at the trial. Dr. Omar was sentenced on 3rd May 1996 to six months imprisonment. He appealed unsuccessfully to the Court of Appeal Criminal Division and was subsequently refused leave to appeal to the House of Lords. The matter came before the Professional Conduct Committee on 20th July 1998 and at the conclusion of those proceedings the Committee decided in light of his conviction to erase his name from the Register with an immediate suspension of his registration. Dr. Omar has now appealed to Her Majesty in Council from that decision.

 

2. Dr. Omar presented his case to their Lordships with clarity and restraint. He sought to attack the Committee's decision in two respects. Firstly, he claimed that the Committee should have looked behind his conviction and considered new evidence; secondly, he claimed that the Committee had erred in its decision to erase his name from the Register.

 

3. The Committee were empowered to direct an erasure under section 36(1)(a) of the Medical Act 1983, where a fully registered person has been found by them "to have been convicted in the British Isles of a criminal offence". The Committee were satisfied that there had been such a conviction. But Dr. Omar argued that his defence had never been fairly represented at his trial, and that it had been misquoted in the Court of Appeal, so that a defence had been throughout attributed to him which he had never claimed and his true defence had never been put forward. The Court of Appeal had mistakenly understood that his defence was to the effect that his admission of guilt on 16th June 1995 was because his patient had become sexually aroused and he was blaming himself for failing to keep control of the consultation. But his defence had always been that the admissions which he made on 16th June 1995 were false. He was innocent of any misconduct. He had not been apologising for his behaviour, but had made the admissions, not on the basis of any direct recollection of anything he had done, but because he had been willing to accept that he must have acted out of character. He had assumed at the time that the only rational explanation must be that the allegations were true, although he had no memory of doing what was alleged. He had admitted his guilt because his condition of mental depression at the time was such as to make him assume that he had done something wrong, although that was in fact a misconception.

 

4. Their Lordships do not require to decide in this case whether it would ever be open to the Professional Conduct Committee to go behind a conviction which has been established before them for the purposes of section 36(1)(a) of the Medical Act 1983. Dr. Omar sought to justify the course in the present case on the ground that the text of the judgment in the Court of Appeal constituted new evidence. But in no sense can that judgment be so regarded. It was not in itself evidence of the incident in question but only a consideration of the evidence. Dr. Omar regards it as a misrepresentation of his line of defence. That description distinguishes it from being evidence in the case. But it also seems to their Lordships to be incorrect, because the Court of Appeal did take up the critical question of the reliability of his admission in terms which appear to cover the point which Dr. Omar is seeking to make. They recognise that persons suffering from a significant depressive illness may make unreliable admissions and they focus on the question whether Dr. Omar's admissions were unreliable "because affected by lack of memory, failure of concentration, confusion, feelings of guilt or worthlessness, or readiness to accept blame without knowing what for". But after carefully reviewing the admissions made on 16th June 1995 they conclude that it is not "within the bounds of reasonable probability that the admissions made by the appellant to the complainant and then to the police officer were or may have been unreliable". It appears that the substance of the point which Dr. Omar is concerned to advance was identified by the Court of Appeal and dealt with in their decision. While Dr. Omar's argument was presented with considerable skill, their Lordships are unable to accede to it.

 

5. Their Lordships accordingly turn to the matter of the erasure from the Register. There are undoubtedly a number of mitigating factors in the case which impressed themselves both on the trial judge and the Court of Appeal in the criminal proceedings. Dr. Omar referred to the nature and brevity of the incident, his depressive illness, and his long unblemished career. He stressed the responsible attitude which he had taken to the situation since his conviction. He sought to demonstrate from past records of some other cases that erasure was neither a necessary nor an inevitable consequence of a conviction for indecent assault.

 

6. But the Committee clearly took a serious view of the case and their concern was, plainly and properly, for the maintenance of the highest standards of practice in the public interest. Their Chairman observed that the offence represented a "disgraceful abuse of the trust which your patient was entitled to place in you as her doctor. It also undermines the trust which the public places in the integrity of members of the medical profession". Their Lordships fully recognise and respect the responsibility which the Committee has in the assessment of the severity of cases of misconduct and in the preservation of public confidence in medical practitioners. The Committee will deal with each case in the light of its own particular circumstances, and their Lordships can find no good ground for questioning the course which the Committee considered to be appropriate in the present case.

 

7. For the foregoing reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed.