The Judicial Committee of the Privy Council Decisions

Dr. Mohinder Singh Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

JUDGMENT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 6th April 2000

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Present at the hearing:-

Lord Nicholls of Birkenhead

[Delivered by Sir Paul Kennedy]

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1. This is an appeal pursuant to section 40 of the Medical Act 1983 from a decision of the Professional Conduct Committee of the General Medical Council which directed the Registrar of the Council to erase the appellant’s name from the Medical Register pursuant to section 36 of the 1983 Act.

 

1. History

 

(A) Background

2. The appellant was born in January 1941, and qualified as a doctor in India in 1967. Since 1972 he has practised as a general practitioner at Forest Gate, London and in Essex. It is clear from the many testimonials submitted on his behalf that he is widely regarded by his patients as a caring and conscientious doctor who has contributed much to the area in which he lives and works.

3. However, between 1985 and 1993 the appellant committed a series of criminal offences, which resulted in his conviction at Snaresbrook Crown Court in October 1996 on an indictment which contained 10 counts – 7 counts of procuring the execution of a valuable security by deception, and 3 counts of false accounting. There were three types of offence –

(1) Claims against insurance companies for sickness and accident benefit payable under Income Protection Policies;

(2) Claims against the DHSS for sickness benefit and invalidity benefit;

(3) Claims against the Family Health Services Authority for the cost of locums.

 

4. For nineteen weeks in 1985, when he claims that he was suffering from abdominal pain, the appellant claimed from two insurers under two separate policies, representing to each insurer that he had no other relevant insurance cover. Each policy limited recovery to 75% of income, and by double claiming the appellant exceeded his loss of income for the relevant period.

 

5. When the appellant sustained a whiplash injury in 1988 he had four income protection policies in force, and claimed under three of them. Again he said to each insurer that he had no other relevant insurance cover.

 

6. In April 1992 the appellant apparently suffered a shoulder injury which resulted in total incapacity until October 1992 and thereafter partial incapacity until March 1993. Again he claimed on a number of insurance policies, and made the same false representation.

 

7. From April 1992 the appellant also claimed from the DHSS sickness benefit for six months, and thereafter invalidity benefit, declaring falsely that he was not working. From May 1992 onwards he also claimed benefit for his wife although she was not, as required, living with him, having been in America since 1985.

 

8. The locum claims also related to the period from April 1992 to February 1993 for which the appellant claimed reimbursement in the sum of £39,765, and received £11,000 for the early months of that period.

9. The issue at trial was dishonesty, and after conviction the appellant was remanded in custody for short time and a medical report was obtained from Dr. Herst. He found the effects of imprisonment upon the appellant to be "quite devastating". For present purposes the details do not matter, but the result was that on 7th November 1996 when the appellant appeared before the Crown Court to be sentenced the judge felt able to regard the dire effect of imprisonment upon the appellant as an exceptional circumstance which enabled the judge to suspend for two years the sentence of 15 months imprisonment which he imposed. A confiscation order was made in the sum of £14,694.02, being the benefit which the appellant obtained from the offences in the indictment, and he was also ordered to pay £37,500 towards the costs of the prosecution. In addition it appears that in respect of the period from 1993 to 1996 the appellant incurred legal costs of about £250,000.

 

10. As to the offences themselves, the judge when passing sentence said:-

"To claim from insurance companies in the way you did was bad enough, knowing that your word would be virtually accepted without question … What really beggars belief in this case is that you claimed from the DSS and rather less so, I suppose from FHSA. You were by deception in respect of those charges taking money from funds which were already hard pressed by the demands upon them. This behaviour was nothing less that despicable. What statement that makes to the community at large I simply do not know, when a doctor of your standing does something like this. I can only conclude that you acted, and I have heard what (counsel) has said so eloquently on your behalf, on the basis of a very old vice, and that is greed, and that is quite simply the conclusion I come to."

 

11. There was no immediate appeal, and the matter then fell for consideration by the General Medical Council.

 

12. On 12th February 1997 the solicitors then acting for the appellant wrote on his behalf to submit that the offences were out of character and did not involve any abuse of patients’ trust. A hearing of the PCC was arranged for 16th May 1997. Shortly before that date the appellant withdrew instructions from his solicitors and applied to the Court of Appeal Criminal Division for an extension of time and for leave to appeal against conviction. The result was that on 16th May 1997 the PCC adjourned consideration of the appellant's case. In July 1997 his applications to the Court of Appeal Criminal Division were refused by the single judge, and he then renewed those applications to the full court.

 

(B) Relevant Incidents

13. On 5th August 1997 the appellant was visited at his surgery by Mr. Malik, a free-lance journalist, and Mr. Mahmood, then the investigations editor of the News of the World newspaper. Neither was an existing patient of the appellant, who knew nothing of their occupations, nor did he know that his conversations with them would be tape-recorded. Speaking in Punjabi Mr. Malik told the appellant he wanted an "orange badge" of the type available to those who are seriously disabled, saying "you get loads of facilities, like free travel on buses and an orange badge, so you can park anywhere. Sometimes they even give you a car". The appellant expressed no surprise, and Mr. Malik passed to him the relevant application form which he had obtained from the local authority. After Mr. Malik had inserted his personal details the appellant then wrote on the form:-

"Severe pain in knees and ankle joints. Low back pain persistent. Cannot walk over 15 metres even with walking stick. Shortness of breath and anginal chest pain."

 

14. Mr. Malik was not questioned as to his medical history, there was no examination, and Mr. Malik was to all outward appearance fit and healthy.

 

15. Mr. Mahmood, who was using the name Khan, purported to have a different problem. He said that he was an asylum seeker, and had an interview with the Immigration Authorities in a couple of days. The appellant said that there was no problem. He would sort it out and make a sick note saying that Mr. Khan had a kidney pain. Again there was no examination, and Mr. Mahmood was asked no questions about his health. Like Mr. Malik he was in fact fit and healthy. Mr. Mahmood was asked to come back next day for the sick note and to bring the money. He asked how much, and the appellant said that the sick note would be £100 but as the orange badge application was a big job that would be £150. The appellant was paid at once £260 and gave no change. Next day he provided a sick note the material part of which reads:-

"To Whom it may Concern: This is to certify that Mr Mohamed Pervez Khan … (address given) … attended my surgery with a history of severe back pain high temperature headaches nausea and vomiting. Urine examinations reveal signs of blood and infection. He has been diagnose (sic) and treated as a case of Acute Pyelonephritis with renal stones. He is unfit to travel to attend any forthcoming interview on medical grounds."

 

16. An article was then written by the journalists which appeared in the newspaper on 10th August 1997.

 

(C) Subsequent Events

17. On 27th October 1997 the full court of the Court of Appeal Criminal Division refused the appellants renewed applications for an extension of time and for leave to appeal. The PCC then fixed its adjourned hearing in respect of the Crown Court matters for 3rd December 1997, and advised the appellant of its intention to consider at the same time a charge of serious professional misconduct arising out of the events of 5th and 6th August 1997. On 3rd December 1997 the appellant applied for the hearing of that charge to be adjourned to enable him to consider challenging the transcript of the tape recordings, and his application was granted. The PCC thus had to consider in isolation the matters which had been the subject of the criminal trial. Giving its decision the Chairman said:-

"The public reputation of the medical profession requires that every member should observe proper standards of personal behaviour, not only in their professional activities but at all times. The Committee takes a very serious view of any evidence of dishonesty by a registered medical practitioner since it undermines the trust the public places in the profession. The Committee are most concerned by the evidence that they have heard in this case of your dishonest and despicable behaviour. The Committee have, however, taken account of the representations made on your behalf and the many testimonials."

 

18. The direction was that the appellant's registration be suspended for 12 months. The appellant's appeal against that direction was dismissed by their Lordships on 13th May 1998 when Miss Booth Q.C. for the appellant accepted that it was for her to show that the penalty imposed was wrong in principle or wholly disproportionate. On that occasion Lord Lloyd of Berwick said:-

"… the committee was entitled to take the view that the policy of preserving public trust in the profession prevailed over the strong personal mitigation which Dr. Singh was able to put forward. The members of the committee are in the best position to judge the relationship between patient and doctor. They had Dr. Singh’s testimonials before them and doubtless took them into account; but they will also have had in mind that this was not an isolated offence of dishonesty: it continued over many years. They were entitled to conclude, as Miss Foster said, that there is no room for dishonest doctors."

 

19. The suspension then took effect. The appellant was restored to the Register on 22nd May 1999 and the PCC was then able, on 11th October 1999, to consider the charge arising out of the events of 5th and 6th August 1997, the factual circumstances being admitted. When giving the decision of the Committee the chairman said:-

"… the public is entitled to put its trust in doctors. Doctors are expected to be honest and trustworthy."

 

20. Having referred to the facts he continued:-

"Such unprofessional behaviour is no less serious than the matters which led to your conviction in October 1996 on ten counts of fraud relating to your practice, and the subsequent suspension of your registration."

 

2. Submissions

21. On this occasion before their Lordships Miss Booth submitted that the PCC failed to take proper account of the fact that had this charge been dealt with on 3rd December 1997 it is likely that there would have been no direction for erasure, but simply an order for a period of suspension. She submitted that the offences of which the appellant was convicted in the Crown Court were far more serious and persistent than the August 1997 offences which were committed at a time of great stress for the appellant. When the matter was before the PCC the legal advisor advised the Committee not to speculate either way as to what would have happened if all matters had been heard together on 3rd December 1997. The Committee was advised that they should deal with this matter on its own and regard the finding on 3rd December 1997 as part of the doctor’s history. Although in the case for the appellant before their Lordships there is some criticism of that advice it was in their Lordships’ opinion clearly correct.

 

22. Miss Booth submitted that in this case the PCC failed to give sufficient weight to the stress which the appellant was under in August 1997, both in his practice over the years when he had no partner, and in his private life. Having parted from his first wife he had remarried and had a young family to support, and he had to meet the financial liabilities arising out of his appearance before the Crown Court.

 

23. Miss Booth further pointed out that on 3rd December 1997 the PCC intended to allow the appellant an opportunity to rehabilitate himself and continue in practice, which he has done since May 1999. She pointed out that in contrast to what happened in the Crown Court the appellant on this occasion admitted all the relevant facts before the PCC. She stressed that people are still writing in support of the appellant and many supporters attended before their Lordships when this appeal was heard. The appellant’s work has always been carried out in an area where there is a shortage of good quality medical care and, Miss Booth submitted, erasure can only damage the public interest, which the PCC seeks to serve.

 

24. Miss Foster for the respondent invited the attention of their Lordships to the whole history of this application and to what was said by Sir Thomas Bingham M.R. in Bolton v. Law Society [1994] 1 WLR 512 as to the function of an appellate court in relation to a professional body such as the PCC. She submitted that the professional body can look beyond the individual doctor and his patients to the interest of the profession as a whole, and reiterated her submission to their Lordships that there is no room for a dishonest doctor.

 

3. Conclusion

25. In their Lordships opinion there is no reason to question the conclusion of the PCC that the August 1997 behaviour is "no less serious" than the matters considered by the Crown Court. It was deliberately dishonest and corrupt behaviour which the appellant indulged in less than a year after the suspended sentence had been imposed upon him, and when, as he knew, the PCC had yet to decide what order to make as a result of his convictions in the Crown Court. Their Lordships do not find it necessary to decide whether, as Miss Foster submitted, the appellant deliberately sought on more than one occasion to stall proceedings before the PCC, but the history is such as to make that submission realistic. The matter does not have to be decided because all that is in issue is whether the order finally made was wrong in principle or wholly disproportionate. In their Lordships opinion it was neither. The PCC clearly took full account of the mitigation and of the other matters to which Miss Booth drew attention, as she did before their Lordships, but the conclusion of the PCC was one at which it was entitled to arrive. Their Lordships will therefore humbly advise Her Majesty that the appeal ought to be dismissed. The appellant must pay the respondent’s costs before their Lordships’ Board.