The Judicial Committee of the Privy Council Decisions

Singh v. The General Medical Council (Medical Act 1983) [2000] UKPC 32 (25th August, 2000)

Dr. Ashwini Kumar Singh Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

6th July 2000, Delivered the 25th August 2000

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Present at the hearing:-

Lord Hope of Craighead

[Delivered by Lord Hope of Craighead]

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1. This is an appeal against a determination of the Professional Conduct Committee of the General Medical Council on 23rd July 1999 directing the Registrar to erase the appellant’s name from the Medical Register. At the conclusion of the hearing their Lordships announced that, for reasons to be given later, they had decided humbly to advise Her Majesty that the appeal ought to be dismissed and ordered the appellant to pay the costs of the appeal. The following are the reasons which their Lordships now give for their report.

 

2. The determination of the Professional Conduct Committee which is the subject of this appeal was made at the end of a resumed hearing which took place on 19th – 23rd July 1999. At a previous resumed hearing of the appellant’s case in September 1998 a number of conditions had been imposed on his registration. The two issues which were before the Committee at the resumed hearing in July 1999 were (1) whether the appellant had failed to comply with any of the requirements imposed on him as conditions of his registration and (2), if so, what course of action it should take in the light of his failure to comply: see rule 42 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988. To enable these issues to be understood in their proper context their Lordships must first summarise the history of the appellant’s appearances before the Committee and his appeals from the various determinations which it made in his case.

 

3. The appellant originally appeared before the Professional Conduct Committee on 11th – 12th March 1996 on a charge of serious professional misconduct. It was narrated in the charge that he had failed to provide a proper standard of medical care to two patients: Mrs. A. Tinsley, when he visited her professionally at her home on 4th January 1993, and Mr. George Barnes, when he failed to make adequate arrangements for his care following a telephone call on 2nd March 1992. The underlying factual allegations were found proved by the Committee and on 12th March 1996 the appellant was found guilty of serious professional misconduct. At the conclusion of the proceedings the Committee directed that the appellant’s registration was to be conditional for a period of twelve months. The condition which was imposed on his registration was that he was to seek and follow the advice of his Regional Postgraduate Dean, and/or his Regional Adviser in General Practice, for undertaking retraining in general practice designed to remedy the deficiencies in his clinical knowledge and skills revealed during the course of the proceedings, with particular reference to clinical examination techniques, communication skills, practice management and knowledge of pharmacology and therapeutics. The appellant appealed against this direction to their Lordships’ Board. On 25th June 1996 their Lordships decided to advise Her Majesty that his appeal should be dismissed. Their Lordships’ advice was approved by Her Majesty in Council on 26th June 1996. The condition took effect on 4th July 1996.

 

4. On 16th – 18th June 1997 (the first resumed hearing) the Professional Conduct Committee resumed consideration of the appellant’s case. At the end of the hearing on 18th June 1997 the Committee found it proved that the appellant had taken no effective steps to comply with the condition which had been imposed on his registration on 12th March 1996. The Committee considered whether to direct the Registrar to erase his name from the Register. But it decided instead to suspend his registration for a period of 12 months. This was to enable him to demonstrate at a further resumed hearing of his case before the end of the period of suspended registration that he had sought and followed the advice of his Regional Postgraduate Dean about his needs for retraining as specified in the condition imposed upon his registration in March 1996. An order was also made in the public interest for his registration to be suspended with immediate effect. The appellant applied to the High Court to terminate the order for his immediate suspension. The matter was listed for hearing in the High Court on 31st July 1997. It was adjourned on 30th July 1997 at the appellant’s request. On 4th November 1997 his application was dismissed. He also appealed to their Lordships’ Board against the direction for his suspension but he later withdrew his appeal.

 

5. On 23rd September 1998 (the second resumed hearing) the Professional Conduct Committee again resumed consideration of the appellant’s case. It had before it a report by Dr. Josse, a former Regional Adviser in General Practice for North East Thames Region, dated 15th May 1998 containing his assessment of the appellant’s knowledge, skills and training needs. Dr. Josse’s conclusion was that the appellant required re-training. The second resumed hearing had been held early in the light of the appellant’s indication that he accepted that he was in need of re-training. The appellant told the Committee that he accepted Dr. Josse’s conclusion to this effect. In the light of Dr. Josse’s report, and the appellant’s acceptance of his conclusion, the Committee determined that for a period of nine months the appellant’s registration was to be conditional on his compliance with the following requirements:-

"a. You may practise only in accordance with the arrangements approved by a supervising trainer or someone of similar expertise to be appointed by the Dean of Postgraduate GP Education or his nominee.

 

b. You shall follow a programme of retraining of not less than six months to be agreed with your Dean of Postgraduate GP Education or his nominee, with particular reference to clinical examination technique, communication skills, practice management and knowledge of pharmacology and therapeutics.

 

c. You must follow the advice of the Dean of Postgraduate GP Education or his nominee regarding your retraining, and attend all courses and undertake to read all relevant medical literature recommended by him or his nominee.

 

d. The programme of retraining must include provision for a final assessment.

 

e. You must make available to the Council the report of the assessment before a resumed hearing."

 

6. The appellant did not appeal against this determination, which he was entitled to do within 28 days after its notification under section 40(3) of the Medical Act 1983. Accordingly the determination took effect 28 days after it was made. The conditions were due to expire nine months later on 25th July 1999.

 

7. On 19th July 1999 (the third resumed hearing) the Professional Conduct Committee resumed consideration of the appellant’s case for the third time. It is the determination made at the end of this hearing on 23rd July 1999 that the appellant’s name be erased from the Register which is the subject of this appeal.

 

8. In his written skeleton argument the appellant submitted that, even if he was guilty of serious professional misconduct as the Committee held in 1996, the conditions for re-training which were imposed on him in September 1999 could not be linked with him and his registration as the Medical Acts 1983 and 1995 did not authorise or empower the General Medical Council to take away his livelihood. He maintained that the facts alleged against him and the charges made were prejudicial, wrongful and against natural justice, that the decisions by the Professional Conduct Committee were malicious and negligent, that its decisions had nothing to do with his registration and licence to practise medicine in the UK and that the conditions imposed on his registration were not legally binding on him. Various other arguments to a similar effect were advanced. Their Lordships must however stress that the appellant has already appealed against the Committee’s determination of 12th March 1996, which contained the finding of serious professional misconduct and the imposition on his registration of a condition for re-training, and that his appeal against that determination has already been dismissed by the Board. So it is no longer open to him to challenge the decision that he was guilty of serious professional misconduct on these or any other grounds. Nor is it open to him to challenge the determinations which the Committee made on 18th June 1997 and 23rd September 1998, as he did not appeal against them within the period of 28 days allowed by section 40(3) of the Medical Act 1983. Their Lordships are concerned at this stage only with the determination which was made by the Committee on 23rd July 1999.

 

9. When the Chairman announced the decision of the Committee on 23rd July 1999 he said that, having carefully considered the evidence, the Committee were gravely concerned to find that the appellant had not complied with conditions b, c, d and e in their determination of 23rd September 1998. He went on to express the Committee’s findings in these terms:-

"You have not followed a programme of retraining of at least six months agreed by the Dean of Postgraduate General Practice Education. You have not followed the advice of the Dean of Postgraduate General Practice Education regarding your retraining. You are therefore unable to make available to the Committee a report of an assessment of your clinical skills following such a period of retraining.

 

We have also noted that you failed to take advantage of opportunities to return to practice under the guidance of a supervising trainer.

 

In deciding what direction we should make, we have taken into consideration the background to your case. In March 1996 you were judged to have been guilty of serious professional misconduct in relation to the facts proved against you in the charge and conditions were imposed on your registration. When consideration of your case was resumed in June 1997 the Committee was informed of your refusal to abide by those conditions and they determined to suspend your registration for a period of 12 months.

 

At the subsequent hearing in September 1998, which was brought forward at your specific request, you informed the Committee that if conditions were imposed on your registration you would abide by those conditions. On that occasion the Committee made it clear that they had considered every option including erasure but they determined to impose conditions on your registration.

 

Today we found that, despite the undertaking you gave at the previous hearing, you have not abided by those conditions.

 

Past experience clearly demonstrates that you are not prepared to abide by conditions imposed on your registration or to accept the need for them. It also demonstrates that suspension of your registration results in statements from you to the effect that you will abide by any conditions the Committee will impose but when such conditions are imposed you continue to prevaricate. The Committee have therefore directed the Registrar to erase your name from the Register."

 

10. The appellant appeared in person to argue his appeal against this determination. In the course of his submissions, which he presented with commendable clarity and moderation, he advanced two main arguments. He said that the conditions which were imposed on him on 23rd September 1998 were not legally binding on him, as they had been imposed more than three years after the initial finding of serious professional misconduct. He said that this was outside the period of three years referred to in section 36(1)(b)(iii) of the Medical Act 1983. The second was that he had done everything possible to comply with the conditions and that in any event his medical competence was not in doubt. He emphasised that the effect of the decision of 23rd September 1998 was to lift his suspension, which he took to be a recognition of his competence, and he referred to his evidence to the Committee that in December 1998 he had passed the post-MRCGP specialist GP qualification from the University of London which satisfied the MRCGP level of medicine and the joint aviation requirements. He also said that until that date it had been impossible for him to comply with the conditions imposed on him by the Committee. It was not until January 1999 that he appreciated the real effect of those conditions and what compliance with them would cost. He said that he was being required to pay £5,000 without having being provided with a contract for his retraining. He regarded this as unacceptable, especially in the light of his proven competence as a doctor and his experience.

 

11. Their Lordships must deal first with the argument that the conditions imposed on 23rd September 1998 were not legally binding on the appellant as the imposition of conditions by the Professional Conduct Committee on registration are subject to a three year time limit. Section 36(1) of the Medical Act 1983 is in these terms:-

"(1) Where a fully registered person –

…

 

(b) is judged by the Professional Conduct Committee to have been guilty of serious professional misconduct, whether while so registered or not;

 

the Committee may, if they think fit, direct –

(i) that his name shall be erased from the register;

 

(ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or

 

(iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirement so specified as the Committee think fit to impose for the protection of members of the public or in his interests."

 

12. This provision contains two time limits. The first is the period of twelve months referred to in section 36(1)(b)(ii). This limits the period during which the person’s registration in the register may be suspended in consequence of a direction by the Professional Conduct Committee to twelve months. At the end of that period, unless renewed by a fresh direction after consideration of the person’s case at a resumed hearing, the suspension ceases to have effect. The second time limit is that referred to in section 36(1)(b)(iii). This is the time limit which is relevant to this case. This limits the period during which the person’s registration may be made conditional on his compliance with the conditions specified in a direction by the Professional Conduct Committee. This period must not exceed a period not exceeding three years which is specified in the direction. Unless they have been renewed after consideration of the person’s case at a resumed hearing, the conditions will cease to have effect at the end of that period.

 

13. In the present case the Professional Conduct Committee decided at the end of the initial hearing on 12th March 1996 to select a period of less than three years for compliance with the conditions imposed on the appellant’s registration in terms of section 36(1)(b)(iii). Its direction laid down a period for compliance of twelve months after the date when written notice of the direction was served upon him. As a result of the appellant’s appeal to their Lordships’ Board the conditions did not take effect until 4th July 1996. The first resumed hearing took place in March 1997, which was well within the twelve month period. At the end of this hearing the Committee decided to replace the conditional registration under section 36(1)(b)(iii) with a period of suspension for twelve months under section 36(1)(b)(ii). At the second resumed hearing the Committee, having decided once again to impose conditions on the appellant’s registration under section 36(1)(b)(iii), selected a further period for compliance of less than three years. The third resumed hearing took place before the expiry on 25th July 1999 of the period of nine months referred to in this determination.

14. From this brief outline of the history it can be seen that the appellant’s argument that the conditions which were imposed on his registration on 23rd September 1998 were outside the three year time limit in section 36(1)(b)(iii) is misconceived. The effect of section 36(1)(b)(iii) is to impose a time limit on any period of conditional registration. This must not exceed such period of three years as may be specified in the direction. The only time limit which is relevant to this appeal is the period of nine months which was specified in the direction for conditional registration which the Committee made at the second resumed hearing on 23rd September 1998. This direction was within the powers of the Committee, as the period which it selected did not exceed the period mentioned in section 36(1)(b)(iii). It was still in force at the date of the third resumed hearing, as this took place before the expiry of the nine month period.

 

15. The next question is whether the Professional Conduct Committee was entitled to find that it had been proved that the appellant had not complied with the conditions for his retraining and that he had demonstrated by his conduct that he was unwilling to comply with them. The appellant accepted in answer to a question which was put to him in his cross-examination at the third resumed hearing that he had told the Committee at the last hearing that if the Committee was minded to allow him to return to practice he would undertake the retraining that Dr. Josse had recommended in his report. The question which the Committee had to consider was whether his willingness to comply with this recommendation was borne out by the evidence.

 

16. Shortly after the Committee’s determination on 23rd September 1998 the appellant met the Dean of Postgraduate General Practice Education, Dr. Abdollah Tavabie, on two occasions. On 22nd October 1998 Dr. Tavabie wrote to the Committee Section of the General Medical Council in order to report that he had so far been unable to identify a GP trainer/educational adviser with the necessary skills to take the appellant for a period of six months supervised training. On 15th December 1998 Dr. Tavabie wrote again to the Committee Section recording the fact that he was still unable to identify any potential educationalist to take the appellant for his further training. A practitioner had volunteered but his practice were concerned and he subsequently withdrew his offer. It was not until January 1999 that any real progress was made.

 

17. On 4th January 1999 a meeting took place between the appellant, Dr. Tavabie and Dr. M. Pawa, an established GP trainer, who was willing to provide the appellant with educational and clinical supervision with appropriate training facilities to work in a full time capacity in his practice in Croydon for a six months continuous period. This was on the basis that the appellant would pay Dr. Pawa £5,000 for his services. Dr. Tavabie wrote to the appellant on 5th January 1999 setting out what he understood had been agreed at that meeting. He asked the appellant to confirm or amend his version of what had been agreed so that he could clarify the position with the General Medical Council. The appellant replied to Dr. Tavabie on 8th January 1999. In his letter he rejected the summary which Dr. Tavabie had set out in his letter of 5th January on the ground that he had reached no such agreement. He maintained nevertheless that he was giving the most serious consideration to Dr. Tavabie’s proposals, and he asked Dr. Tavabie to send him what he described as the proposed training/service/educational contract.

 

18. On 22nd January 1999 the associate Dean, Dr. Reed Bowden, wrote to the Committee Section reporting that the Deanery had found an experienced trainer, Dr. Andrew Ashford of Epping, who was prepared to offer the appellant a supervised post with mentoring and assessment and that Dr. Ashford had had a long interview with the appellant. It had however become clear that the appellant was not yet able to see his difficulties objectively. He felt himself to be unfairly accused and he would not submit himself to assessment, and his lack of co-operation increased when he realised that the costs of his educational rehabilitation would be his own responsibility. The appellant had not therefore taken up Dr. Ashford’s offer.

 

19. On 25th January 1999 Dr. Tavabie wrote to the Committee Section saying that he had advised Dr. Pawa not to commence training of the appellant until the appellant in principle had agreed with the arrangements. No further steps were taken by the appellant to achieve agreement, with the result that the offer by Dr. Pawa was not taken up. On 17th February 1999 the Committee Section wrote to Dr. Bowden expressing thanks for the time and effort he had spent in trying to help the appellant and disappointment at the fact that the appellant had not taken up his offer. On 22nd February 1999 the Committee Section wrote in similar terms to Dr. Tavabie to thank him for the time and effort which he had spent in trying to help the appellant and asking him to pass on thanks to Dr. Pawa.

 

20. Their Lordships were satisfied, after considering the terms of these letters and the other evidence which was before the Professional Conduct Committee in July 1999, that the Committee was entitled to conclude that, notwithstanding the problems that had been experienced initially, satisfactory offers were made to the appellant in January 1999 for his retraining and that the Committee were also entitled to conclude that the appellant was at fault when he decided not to accept these offers. It would have been a different matter if the appellant had been able to demonstrate that the offers which were made to him were unreasonable or were incapable of being implemented. But it appears that considerable efforts had been made by Dr. Tavabie and Dr. Bowden to set up a reasonable and effective programme for him to meet the educational requirements that the Committee’s determination of 23rd September 1998 had identified. In the light of the whole background to the appellant’s case, and in particular his failure to adhere to the undertaking which he gave to the Committee at the second resumed hearing that he would accept conditions for retraining based on Dr. Josse’s recommendation, the Committee was entitled to conclude that he was not prepared to accept the need for them and that he was prevaricating.

 

21. The appellant laid great stress in his argument to their Lordships on the MRCGP specialist GP qualification which he had obtained from the University of London in December 1998. He said that this was a very sophisticated national qualification which was internationally recognised. He maintained that in the light of this qualification there were no good reasons for doubting his competence. But it is clear from the Committee’s decision that it was not persuaded that this qualification was a satisfactory substitute for the programme of retraining which it prescribed for the appellant in its determination of 23rd September 1998. Their Lordships noted that particular reference was made in that decision to the need for retraining in clinical examination technique, communication skills, practice management and knowledge of pharmacology and therapeutics. The Committee was entitled to insist that any programme of retraining which the appellant undertook must satisfy these requirements. It was entitled to reject the University of London qualification, which did not do so, as a substitute.

 

22. The remaining question is whether, having found that the appellant had failed to abide by the conditions for retraining, the Committee was entitled to direct the Registrar to erase the appellant’s name from the Register. This a matter which was pre-eminently one for the Committee to decide in the exercise of its discretion under section 36(2)(a) of the Medical Act 1983. Decisions taken by the Professional Conduct Committee in the public interest in matters relating to penalty are decisions with which their Lordships’ Board is slow to interfere. This is because the Committee are best qualified to judge what measures are required to maintain the standards and reputation of the profession and to assess the seriousness of the misconduct. The present case is not one where interference by their Lordships’ Board would be justified.

23. The Professional Conduct Committee decided at the initial hearing in March 1996 to give the appellant an opportunity to rehabilitate himself by undertaking a retraining programme as a condition of remaining on the register. It was encouraged to extend that opportunity to him again at the second resumed hearing in September 1998 in the light of the undertaking which he gave that he would comply with conditions requiring him to undertake a retraining programme. It is a matter for regret that the appellant was unable to accept the proposals for retraining that were on offer to him in January 1999. But the fault for this lies entirely with him and not with the Committee or with the General Medical Council. In all the circumstances their Lordships are in no doubt that the Committee was entitled to conclude from his refusal to accept the proposals for retraining that were made to him that it was left with no alternative but to impose the ultimate penalty of erasure from the Register.