The Judicial Committee of the Privy Council Decisions

Gnanapragasam Anton Joseph Selvanathan v. The General Medical Council (Medical Act 1983) [2000] UKPC 37 (11th October, 2000)

1. This is an appeal against a determination of the Professional Conduct Committee on 18th February 2000 finding that the appellant, who is a registered medical practitioner, had been guilty of serious professional misconduct. In the light of that finding the Committee directed that for a period of twelve months his registration on the Medical Register was to be conditional on his compliance with the requirements (1) that he was not to engage in any single-handed practice, (2) that he was to submit to an objective assessment of his clinical knowledge and skills with particular reference to his communication skills and relationships with colleagues and patients and (3) that he was to demonstrate throughout that assessment that he was fit to resume in unrestricted practice. The appellant does not take issue with the decision of the Committee on the question of penalty. His appeal is directed to the finding that he was guilty of serious professional misconduct.

2. The appellant qualified in 1974 in Sri Lanka at the Colombo Medical School. He obtained a further qualification in 1978 from the Royal College of Surgeons of Edinburgh. Between 1979 and 1981 he worked as the medical officer to a Catholic mission in Africa, after which he came to this country. He re-qualified as a physician with the Royal College of Physicians in Edinburgh and the Royal College of Physicians and Surgeons of Glasgow. He then worked in a variety of positions as a registrar before setting himself up in general practice in London with five other practitioners. He became a full partner in that practice in 1996. He remained with the practice until March 1999 when he left to set up on his own account as a general practitioner.

3. One of the patients of the practice of which the appellant was a partner in 1996 was Mrs. Agnes Sewell, who was aged 73. She lived with her daughter Pauline Sewell in a flat in Deptford. Mrs. Sewell died on 17th December 1996. After her death her daughter Pauline made a complaint to Lewisham Community Health Council, which was her local community health council. She alleged that, although requested to do so, the appellant had not made a home visit to her mother before her death. The implication of her complaint was that, had he made such a visit, Mrs. Sewell might still be alive. Lambeth, Southwark and Lewisham Health Authority was invited to mediate between Miss Sewell and the appellant’s practice. During the investigation of the complaint the appellant wrote a number of letters to the health authority. The charge of serious professional misconduct related solely to the way in which the appellant responded to the complaint. It was not suggested by the respondent that a home visit would have prevented Mrs. Sewell’s death or that the appellant was guilty of serious professional misconduct when he declined to visit her.

4. The Notice of Inquiry, as amended at the outset of the hearing on 18th February 2000, stated that the matters into which the inquiry was to be held into the appellant’s conduct were the following:-

"1a. At the material times you were general practitioner for Mrs. Agnes Sewell,

b. On 17th December 1996, Pauline Sewell, Mrs. Sewell’s daughter, telephoned your surgery at 17.02 hours and spoke to you over the telephone about her mother’s condition,

c. Miss Sewell subsequently made a complaint that you did not visit her mother at home when requested to do so;

2a. In your letter of response to Lambeth, Southwark and Lewisham Health Authority’s inquiry about the complaint dated 6th October 1997 you wrote

(i) ‘To the best of my knowledge I remember that I received the call during the morning surgery’,

(ii) ‘I remember that the prescription was not picked up at 12 noon at the end of the morning surgery and again at 4.00pm before the start of the evening surgery’,

b. That information was

(i) False,

(ii) Misleading;

3a. In responding to Miss Sewell’s complaint, your letters questioned the circumstances leading to Mrs. Sewell’s death,

b. There was no factual basis for your comments,

c. Your response in this respect was

(i) Inappropriate,

(ii) Intended to mislead subsequent investigations into Miss Sewell’s complaint;

And that in relation to the facts alleged you have been guilty of serious professional misconduct."

5. The respondent’s case, as explained by counsel in his opening remarks, was that the appellant deliberately gave a false and misleading response to the local health authority in his letter of 6th October 1997, and that in his subsequent letters he deliberately challenged the circumstances of Mrs. Sewell’s death by suggesting alternative causes for which there was no factual basis. Counsel said that these responses were highly inappropriate. He also said that the appellant’s purpose when he introduced these matters was to avoid or confuse the original complaint against him, which had raised the simple issue as to whether or not he should have visited Mrs. Sewell before her death. The appellant’s solicitor said that it was not disputed that the appellant handled the complaint clumsily and that what he did was not in accordance with acceptable practice. But he denied the gravamen of the charge, which was that he acted dishonestly.

The Hearing

6. At the outset of the hearing the appellant admitted the factual allegations in heads 1(a), (b) and (c) and 2(a)(i) and (ii). He did not admit head 3(a), and he denied heads 2 (b), 3(b) and (c). The statements of all the witnesses, including Pauline Sewell, were accepted by his solicitor and all the relevant correspondence was agreed. The only questions of fact which were in issue were those which depended upon inferences from the undisputed evidence. Oral evidence as to the cause of Mrs. Sewell’s death was given by Lieutenant Colonel Neil Ineson, a consultant general surgeon at Frimley Park Hospital, Camberley with an interest in cardiology. His evidence was that a home visit by the appellant would probably not have prevented Mrs. Sewell’s death. But he also said that he could find nothing to support the alternative causes for her death that the appellant had suggested. The appellant gave evidence on his own behalf, and evidence was led from two witnesses as to his good character.

7. After the conclusion of the appellant’s evidence the Legal Assessor asked the respondent’s counsel whether his allegation was that the statements in the letter of 6th October 1997 referred to in heads 2(a)(i) and (ii) were deliberately misleading and, if so, whether he would clarify the points which the Committee had to consider under heads 2(b)(i) and (ii). After discussion counsel for the respondent agreed that the difficulty could be solved if head 2(b) were to be amended so that it read "that information was [(i)] known by you to be false and [(ii)] intended to be misleading". The charge was then amended to that effect with consent.

8. The decision of the Committee, after considering the evidence, was that heads 2(b)(i) and (ii) as amended and heads 3(a), (b) and (c) had been proved. Counsel for the respondent was then invited to address the Committee under rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (S.I. 1988 2255) ("the 1988 Procedure Rules"), which provides:-

"28(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.

(2) The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."

9. The expression "the Solicitor" in rule 28(1) means any solicitor, or any firm of solicitors, appointed by the respondent or any partner of such firm: rule 2(1).

10. The respondent’s counsel addressed the Committee briefly in relation to the issue of serious professional misconduct. The Chairman did not in terms invite the solicitor for the appellant to address the Committee under rule 28(2) at this stage. But the solicitor made the following statement in reply to the address by the respondent’s counsel:-

"I do not argue that on the facts found this is not capable of being serious professional misconduct. It is a matter for you and I do not seek to argue the point. The charges you have found proved are serious."

11. After the Committee had deliberated further the Chairman announced their determination in the following terms:-

"Dr. Selvanathan, the public has a right to expect that doctors will be honest and trustworthy. They should also be able to rely on them to respond in an honest and constructive manner about any concerns or complaints brought to their attention by patients or complaint-handling bodies.

The facts found proved against you have shown that you gave false and misleading information when responding to the complaint by Miss Sewell. Those remarks were wholly inappropriate and caused great distress and offence to Miss Sewell, who had a right to expect that her complaint would be considered in an appropriate manner.

In the light of the facts admitted and found proved, we have found you guilty of serious professional misconduct. The public interest demands that doctors must address any complaints or criticisms in a considerate, constructive and accurate way. Failure to do so undermines the relationship of trust which exists between doctors, patients and their families. Your conduct in this case has clearly damaged that relationship.

In considering what action to take in the case, we have considered the evidence given in mitigation including the evidence given by your character witnesses and the testimonials. However the serious nature of your misconduct is such that we have directed that for a period of 12 months your registration shall be conditional on your compliance with the following requirements:

1. You shall not engage in any single-handed practice;

2. You shall submit to an objective assessment of your clinical knowledge, skills and in particular your attitude with reference to your communication skills and relationships with colleagues and patients, of a nature to be determined by assessors nominated by the Council. The report of this assessment will be considered at a resumed hearing of your case. Further information about the arrangements for the assessment will be sent to you in due course.

3. You should demonstrate through that assessment that you are fit to resume in unrestricted practice."

12. The Chairman then informed the appellant about his right of appeal. He said that the Committee would resume consideration of his case at a meeting to be held before the end of the period of 12 months. At this point the appellant’s solicitor interrupted the proceedings. He told the Committee that he had not yet said anything in mitigation and that he had not had an opportunity to suggest how the case might be disposed of. The Legal Assessor suggested that this omission could be cured, if the Committee thought that this was appropriate, by allowing the appellant’s counsel to address the Committee then in mitigation. He advised the Chairman and the Committee that they should hear any words in mitigation that the appellant’s solicitor was in a position to address. The solicitor was then invited to address the Committee, which he did.

13. In the course of his submissions the solicitor accepted that some punishment was necessary in view of the way the appellant had conducted himself. But he submitted that the offence was out of character and that admonishment was appropriate. He also said that he had anticipated submitting to the Committee that it might wish to require the appellant to undergo training in communication skills before hearing of their disposal of the matter. The Committee then took time to consider these submissions. At the end of this further period of deliberation the Chairman announced that, having considered the question of sanction afresh and taken account of what had been said in mitigation including the question whether admonishment might be an appropriate disposal, the Committee had decided to adhere to their provisional determination.

The Appeal

14. Mr. Beloff for the appellant said that he wished to advance three submissions in support of the appeal, all of which were inter-related. The first was that, due to irregularities in the proceedings before the Committee, justice could not be seen to have been done in this case. The second was that the Committee’s determination was defective because they did not give reasons for their finding that the appellant was guilty of serious professional misconduct. The third was that the Committee was not entitled to find that the appellant was guilty of serious professional misconduct. This was because there was no basis in the evidence on which they could reasonably have concluded that, when he made the statements in his letter of 6th October 1997 quoted in head 2(a), the appellant knew that this information was false and that he intended it to be misleading. Their Lordships will consider these submissions in that order.

Procedural errors

15. Mr. Beloff made two submissions in support of his proposition that justice was not seen to be done. The first was that head 2(b) as originally set out in the charge was ambiguous and that its meaning remained in a state of uncertainty throughout the hearing. In the result one could not be confident that the charge as originally framed had entirely disappeared from the minds of the Committee. The second was that the Chairman failed to invite the appellant’s solicitor to address the Committee in mitigation before the Committee began to deliberate on the question whether the appellant had been guilty of serious professional misconduct and, if so, the question of penalty. The result was that the Committee had already determined these matters before the appellant’s solicitor had been heard in mitigation.

16. Their Lordships can find nothing of substance in the first point. There may at one stage have been some uncertainty as to the precise meaning which was to be given to the wording of head 2(b). At the end of his opening counsel for the respondent said in terms, after setting out the facts, that the Council’s case was that the appellant deliberately gave a false and misleading response in his letter of 6th October 1997 to the local health authority. But when counsel for the appellant intervened in the course of the cross-examination to ask that it should be made clear whether it was being suggested that the appellant had given information which was deliberately false, counsel for the respondent replied: "I am merely looking at Head of Charge 2b(i). ‘False’ is what I am putting and false is what I need to establish". It appears to have been this exchange that led to the suggestion by the legal assessor that the wording of head 2(b) should be amended. In reply to that suggestion the respondent’s counsel accepted the proposition that his case was that the appellant was deliberately misleading the health authority. Commenting on the terms of the proposed amendment, he said that he was "happy to live with that phraseology".

17. The purpose of the amendment was to enable the Committee to focus on the point which was of real importance in the case. When the Chairman announced that the Committee had found heads 2b(i) and 2b(ii) proved he said in terms that they had found these heads proved in their amended terms. The only possible indication that the Committee may have misunderstood the position came at the later stage when the Chairman announced the determination of the Committee. He said that the facts found proved against the appellant had shown that he gave "false and misleading" information when he was responding to the complaint by Miss Sewell. But their Lordships are not persuaded that, when they are read in their context, the use of these words indicates that the Committee overlooked or were confused by the amendment. In the opening paragraph of the determination the Chairman referred to the fact that the public had a right to expect that doctors would be "honest and trustworthy" and to be able to rely on them to respond in an "honest and constructive" manner to complaints. The determination as a whole shows that the Committee, having found that the amended heads had been proved, decided to look broadly at the effect of all the proved facts in reaching their decision that this was a case of serious professional misconduct. The requirements which they decided to impose on the appellant’s registration were appropriate to a decision reached on this basis. Their Lordships can detect no basis here for the view that justice was not seen to be done.

18. As for the second point, it is clear that the appellant’s solicitor did not address the Committee in mitigation before they deliberated on the question whether the appellant was guilty of serious professional misconduct and, if so, the question of penalty. In his brief reply to the address by the respondent’s counsel he said that he did not argue on the facts that the Committee had found proved that the case was not capable of being one of serious misconduct. What he omitted to do was to say anything at this stage on the question of penalty. For his part the Chairman omitted to invite the appellant’s solicitor, in the terms set out in rule 28(2), to address the Committee by way of mitigation and to adduce any evidence relating to that matter. These omissions appear to have been due to a misunderstanding on both sides. The Chairman seems to have assumed that the appellant’s solicitor was familiar with rule 28 and that, as the solicitor had already led evidence from two witnesses as to the appellant’s good character and addressed the Committee in reply to the respondent’s counsel, he had no more to say on this matter. The appellant’s solicitor told the Chairman that he had been waiting for an invitation to mitigate. As soon as it had become clear that there had been a misunderstanding the appellant’s solicitor was allowed to make the submissions which he wished to make in mitigation of penalty.

19. Their Lordships are not persuaded that a reasonable observer would have thought that justice was not being done in these circumstances. It would have been unjust for the Committee to refuse to hear the appellant’s solicitor in mitigation, but he was not prevented from addressing the Committee on this matter before they deliberated. He was not invited to do so at the rule 28(2) stage. But their Lordships do not regard this as a significant defect in the proceedings as it was not unreasonable, when the appellant’s solicitor spoke in reply to the respondent’s counsel, for the Chairman to assume that he was familiar with the rule. Once the omission had been pointed out the solicitor was given an opportunity to say all that he wished to say, and the Committee then deliberated further on the question of penalty. The fact that they adhered to their original decision was unsurprising in view of the nature of the serious professional misconduct that they had found proved and the submissions made to them by the appellant’s solicitor. The solicitor told the Committee before they deliberated further that, if his suggestion of admonishment were to be rejected, he had anticipated submitting that the appellant might be required to undergo training in communication skills. There is no reason to think that the Committee did not take full account of his submissions before the Chairman announced that, having deliberated further, they had decided to adhere to their original decision on this matter.

Failure to give reasons

20. Mr. Beloff acknowledged that in Libman v. General Medical Council [1972] AC 217, 221 the Board approved of the practice by which, beyond a bare statement of their findings of fact, the Disciplinary Committee did not in general give reasons for their decision, and that in Stefan v. General Medical Council [1999] 1 WLR 1293, 1297A-B Lord Clyde said that the Board expressly refrained from expressing any view on the position regarding the giving of reasons by the Professional Conduct Committee. He submitted however that the same principles as those described in Stefan’s case with regard to cases heard by the Health Committee should be applied to cases heard by the Professional Conduct Committee, and that there had been a failure in this case to satisfy these principles. In particular, fairness required that the appellant should know the basis on which the Committee reached their conclusion that he had deliberately lied to the local health authority with the intention of misleading them. The proceedings were akin to those of a court, where the giving of reasons was expected. The issue was one of considerable importance to the appellant, as it affected his right to continue working as a sole practitioner.

21. In reply, Mr. Engelhart for the respondent accepted that the Professional Conduct Committee should give some explanation of the reasons why they had decided to find a medical practitioner guilty of serious professional misconduct. But he pointed out that there had been two important changes in practice since the decision in Libman’s case. The first was that the charge now contained a detailed statement of the factual basis for the allegation of serious professional misconduct. The second was that in practice an explanation of the reasons for the decision was now given, and that had been done in this case. In his submission the appellant’s real complaint was not that reasons had not been given for the finding of serious professional misconduct and the Committee’s decision on the question of penalty, but that reasons had not been given for their decision to find that the disputed heads of the charge had been proved. In this case there was no need, in the interests of fairness, for reasons to be given on that matter. The issues of fact had been clearly identified. The question was agreed from the outset to be one of inference from facts which were agreed.

22. Practice has moved on since Libman v. General Medical Council [1972] AC 217 and the subsequent cases of Rai v. General Medical Council (unreported), (14th May 1984, Privy Council Appeal No. 54 of 1983) and Peatfield v. General Medical Council [1986] 1 WLR 243 in which the Board held that, although the Professional Committee had power to give reasons, it was under no obligation to do so. As a result of changes introduced by the 1988 Procedure Rules cases are heard by the Professional Conduct Committee under detailed rules which lay down a carefully structured system for the way such proceedings are to be conducted. Rule 17(1) provides that the notice of inquiry which is to be sent to the practitioner must specify in the form of a charge the matters into which the inquiry is to be held. Rule 17(2) provides that, in a case relating to conduct, the charge must include a statement which identifies the alleged facts upon which the charge is based. There is then a two stage procedure by which the Committee must first consider and determine under rule 27(2) which, if any, of the facts alleged have been proved and the Chairman announces their findings under rule 27(3), before the Committee proceed under rules 28 and 29 to determine the question of serious professional misconduct. In contrast to the practice which is followed under their rules by the Health Committee, where there is no charge setting out the allegations of fact and there is a single determination at the end of the proceedings as to the practitioner’s fitness to practice, the 1988 Practice Rules ensure that the factual basis for a finding of serious professional misconduct by the Professional Conduct Committee is clearly identified at the outset. They also ensure that the Committee’s findings are made known to the practitioner before he is invited to address the Committee in mitigation under rule 28(2) and the Committee then proceeds to determine this issue under rule 29.

23. Rule 29 of the 1988 Practice Rules states that, when the Committee have determined the question whether they find the practitioner to have been guilty of serious professional misconduct, they shall record, and the Chairman shall announce, their finding. It does not require the Committee to give reasons. But the current practice, which the Committee followed in this case, is for a brief explanation to be given in all cases for their finding as to whether or not the practitioner has been guilty of serious professional misconduct. In Rai v. General Medical Council, pp. 10-11 the Board suggested that the giving of reasons could be beneficial, and assist justice, to enable the doctor in a complex case to understand the Committee’s reasons for finding against him, to give guidance to the profession where this can usefully be provided and because a reasoned finding can improve and strengthen the appeal process. Their Lordships consider that in practice reasons should now always be given by the Professional Conduct Committee for their determination under rule 29(2) whether or not they find the practitioner to have been guilty of serious professional misconduct and their decision on the question of penalty. Fairness requires this to be done, so that the losing party can decide in an informed fashion whether or not to accept the decision or to appeal against it under section 40 of the Medical Act 1983. But the question which is in issue in the present case is not whether reasons should be given. It is plain that reasons were given in this case. The question is as to the adequacy of those reasons.

24. In regard to this question, it is necessary to bear in mind the composition and nature of the Professional Conduct Committee which is constituted by the Council under the rules made under paragraph 21 of Schedule 1 to the Medical Act 1983. It is composed of medical practitioners and lay members. The only legal assistance they have is that of the Legal Assessor appointed under paragraph 7(1) of Schedule 4 to that Act, whose function under the General Medical Council (Legal Assessors) Rules 1980 (S.I. 1980 No. 941) is to advise them on questions of law. The 1988 Practice Rules require the Committee to reach a view as a committee on the matters which they have before them for determination. No provision is made for expressions of dissent either as to the result or on matters of detail. In these circumstances it is not to be expected of the Committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases.

25. In the present case the complaint is that reasons should have been given to explain the basis upon which the Committee found against the appellant on the questions of fact raised by head 2(b). It was plain however from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the Committee’s assessment of the appellant’s credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the Committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In these circumstances their Lordships do not consider that it was necessary for reasons for this part of the Committee’s decision to be given.

The Evidence

26. The submission in regard to this ground of appeal is that the Committee were not entitled, on the evidence, to find in terms of head 2(b) as amended that information which the appellant gave in his letters was known by him to be false and was intended by him to be misleading.

27. Mr. Beloff said that there were reasons for doubting whether the Committee appreciated that the allegation that this was done deliberately was the point to which they had to direct their attention, and that there was a plausible case for the view that the errors which he made were unintentional. He referred to the gap in time of almost ten months between the disputed telephone call on 17th December 1996 and the appellant’s first recollection of it in his letter of 6th October 1997. He said that this in itself made it not unreasonable to regard his statements as having been made, as he said in that letter, to the best of his knowledge and recollection. But the point on which he founded most strongly was the suggestion that the appellant made in each of his three letters that his recollection of the timing of the telephone call could be checked against the records available from British Telecom and his offer in his letter of 6 October 1997 that his practice would pay for obtaining them. As Mr. Beloff put it, why should the appellant ask for these records to be obtained if he knew that the information that he had given about the timing of the telephone call was false information? His statement that the prescription had not been picked up was really no more than a footnote to his point about the timing of the telephone call. It did not provide an answer to the essential point of the complaint, which was that he should have visited Mrs. Sewell regardless of whether the telephone call was made in the morning or the afternoon. He submitted that no satisfactory answer to these points was offered at any stage in the proceedings by the respondent.

28. For the respondent Mr. Englehart said that the question for the Committee was short and straightforward: was this a case of a genuine but mistaken recollection? They were entitled to take the view that the allegation about Miss Sewell’s failure to collect the prescription was linked to the allegation about the timing of the telephone call. They were also entitled to attach some importance to the fact the appellant had produced no records of his own or any other evidence to support his allegations. It was open to the Committee to conclude that the appellant’s purpose in writing as he did was to persuade the local health authority that Miss Sewell showed by her conduct that she did not think that there was an urgent need to deal with her mother’s case, and that he wished also to attack Miss Sewell’s credibility in view of her suggestion that her mother might have lived if she had received a home visit. They were entitled to hold that he was asserting that he had a recollection of events of which he had no actual recollection.

29. Their Lordships consider that the Committee were entitled to take the view that the appellant’s purpose in presenting a detailed account of the events of 17th December 1996 to the local health authority was to show that the case had not been presented to him as one of urgency. Furthermore there was plainly room for the view, looking at the correspondence overall, that he over-reacted to the complaint and that as part of that over-reaction he made allegations against Miss Sewell which were deliberately untrue as they were not based on an honest recollection by him of what had happened. The question for the Committee was essentially a jury question. The answer to it depended to a substantial extent upon their assessment of the appellant’s credibility, and they had the advantage of seeing and hearing the appellant when he was giving his evidence. In Libman v. General Medical Council [1972] AC 217, 221A-B Lord Hailsham of St. Marylebone L.C. said that the only circumstances in which an appeal court could reverse a view of the facts taken by the Disciplinary Committee would be a case where it would appear that the Committee had misread the evidence "to such an extent that they were not entitled to make a finding in the state of the evidence presented before them". It has not been shown that the Committee misread the evidence in this case. They were entitled to find, having disbelieved the appellant, that the allegations referred to in the charge were made by him dishonestly. In these circumstances their Lordships are unable to find any grounds which would entitle them to interfere with the decision of the Committee to reject his explanation and find these heads of charge proved.

Conclusion

30. Their Lordships have had in mind Mr. Beloff’s point that the three grounds on which he presented the appeal were inter-related. But they are not persuaded that any of these grounds have been made out. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed with costs.

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