The Judicial Committee of the Privy Council Decisions

Bijl v. General Medical Council (GMC) [2001] UKPC 41 (2 October 2001)

Privy Council Appeal No. 78 of 2000

Mr. Willem Bijl Appellant v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 2nd October 2001

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Present at the hearing:-

Lord Hoffmann

Lord Mackay of Clashfern

Lord Clyde

[Delivered by Lord Hoffmann]

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1. This is an appeal from a decision on 4 November 2000 of the Professional Conduct Committee of the General Medical Council to direct that the name of the appellant Willem Bijl be erased from the register. The direction followed a finding on the previous day, from which there is no appeal, that he had been guilty of serious professional misconduct.
2. Although the Board has full jurisdiction under section 40 of the Medical Act 1983 to entertain an appeal by way of rehearing from such a direction, it has traditionally and rightly exercised that jurisdiction with circumspection. As the Board said in Evans v General Medical Council (unreported) Appeal No 40 of 1984 at p. 3:

"… a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct and … the Board will be very slow to interfere with the exercise of discretion of such a committee … The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards."

3. The Human Rights Act 1998 has not affected the validity of these remarks which are not based upon any principle restrictive of the appellate powers of the Board but on obvious common sense. European jurisprudence on human rights does not suggest that they are incompatible with the right to a hearing by an independent and impartial tribunal in accordance with Article 6(1) of the Convention: see Wickramsinghe v United Kingdom (Application No 31503/96 9 December 1997) (unreported) and Stefan v United Kingdom (App. No 29419/95 9 December 1997) EHRR Commission Supplement CD 130.
4. At the time of the incident which gave rise to the charges, Mr Bijl was a consultant urologist at Basildon Hospital. On 2 July 1996 he carried out a "keyhole" operation upon Mrs Mary Love to break down and remove a large staghorn stone which was lodged in her left kidney. Mrs Love was 61 and suffered from a variety of ailments including urinary tract infections, diabetes, chronic ischaemic heart disease, left ventricular failure, hypertension and obesity. She had had a hysterectomy and a triple by-pass. The consultant anaesthetist in attendance, Dr Simon Thomson, assessed the level of risk she posed in anaesthetic terms on a scale from 1 (fit) to 5 (moribund) as 3 (severe chronic disease which is not immediately life-threatening).
5. The operation began at 2.00 pm when Mrs Love was given a general anaesthetic. Dr Chan, consultant radiologist in attendance, created a track though which Mr Bijl could have access to the kidney stone. He punctured the kidney with a needle down which he passed a guide wire which in turn enabled a sheath to be passed into the kidney. The purpose of the sheath is to control bleeding from the kidney tissue and to enable a nephroscope (a kidney telescope) to be passed into the kidney, so that Mr Bijl could see and attack the stone. These preliminary works took some time because the guide wire kinked. It was 4.00 pm before Dr Chan satisfied himself that Mr Bijl had a clear vision of the stone and left the theatre.
6. Breaking up the stone proved a slow and difficult process. Mr Bijl was looking through his telescope trying to see the stone while Nurse Tannock kept the operation area free of blood clots by continuous irrigation with saline fluid. He was using a lithotripsy (a probe which emits short bursts of energy) to break the stone into pieces which could be removed with forceps. His note described progress as tedious.
7. Despite the sheath, Mrs Love was bleeding internally during the operation. A lot of blood, together with irrigation fluid, was visibly draining through a tube into a large pouch at the operating table. At 5.15 pm Dr Thomson was concerned about the amount of blood loss and measured the haemoglobin level. It had fallen from 12.9 before the operation to 7.1. There was a general discussion about the significance of this measurement, which appeared to indicate a considerable loss of blood. Dr Thomson gave the patient a transfusion of two units. At 5.45 pm there was an episode of hypotension (drop in blood pressure) which Dr Thomson was able to correct and stabilise by reducing the intravenous supply of isoflurane and introducing some gelofusine. He told Mr Bijl, who was still having trouble in locating and breaking up the stone, that unless he was making better progress he should consider abandoning the operation in half an hour.
8. After twenty minutes or so, Mr Bijl said that he was making good progress. Parts of the stone were breaking up and could be removed. The operation continued for another half an hour. At 6.45 pm there was another episode of hypotension and Dr Thomson said that he thought they should stop. Mr Bijl stopped and a Wallace drain was inserted. The visible rate of blood flow into the collection bag was substantial. More blood arrived for transfusion. Dr Thomson gave the patient another four units and arranged for her to be transferred to the Intensive Treatment Unit.
9. While this was happening, Mr Bijl changed, wrote up his notes and returned to the theatre to say that he was going home. Dr Thomson, surprised, said "She is not out of the woods yet, she's bleeding and has a low blood pressure". Mr Bijl, not taking or understanding the hint, said that he would be available on the telephone if required. He thanked the team and left.
10. Fifteen minutes later there was a crisis. Mrs Love was suffering massive internal bleeding from the kidney and had virtually no pulse. Her life was in danger. Dr Thomson rang Mr Bijl's number but he was still in his car on the way home. He called another surgeon, Mr Osborne, who carried out an emergency operation to clamp the site of the bleeding in the kidney. This stabilised her condition but she died two days later. The pathologist who carried out the autopsy identified the cause of death as hypovolaemic shock following the operation. It should be said that there is no suggestion that the outcome would have been different if Mr Bijl had stayed and performed the emergency operation himself.
11. The substance of the charges which the Committee found proved against Mr Bijl were twofold: first, that despite obvious indications of substantial loss of blood he had carried on the operation for far too long and, secondly, that after completing the operation, he abandoned the patient when her condition was still serious. The length of the operation was the product of a largely unstated consensus between surgeon and anaesthetist, although both were criticised by the expert witnesses for failing to engage in any kind of discussion. But the Committee was obviously most concerned about the second charge, which they described as "seriously irresponsible and a grave neglect of proper professional standards". They also spoke of Mr Bijl's "continuing lack of insight", by which their Lordships think they meant that his explanations for what happened that afternoon suggested an unduly rigid view of the demarcation of responsibilities between the surgeon and the other members of the operating team. Some of Mr Bijl's answers gave the impression that he considered that his duty was to look through the telescope and demolish the stone while the anaesthetist's duty was to keep the patient alive. This was consistent with what appeared to have been an almost total absence of communication between Mr Bijl and the rest of the team about the patient's condition during the operation.
12. In the circumstances, their Lordships are not surprised that there is no appeal against the finding of serious professional misconduct. Mr Bijl himself said in evidence that his decision to leave the hospital was certainly a mistake which he would never make again.
13. The Committee was rightly concerned with public confidence in the profession and its procedures for dealing with doctors who lapse from professional standards. But this should not be carried to the extent of feeling it necessary to sacrifice the career of an otherwise competent and useful doctor who presents no danger to the public in order to satisfy a demand for blame and punishment. As was said in A Commitment to Quality, A Quest for Excellence, a recent statement on behalf of the Government, the medical profession and the National Health Service:

"The Government, the medical profession and the NHS pledge … without lessening commitment to safety and public accountability of services, to recognise that honest failure should not be responded to primarily by blame and retribution but by learning and by a drive to reduce risks for future patients."

14. The Board, as their Lordships said at the outset, is reluctant to substitute its own views for those of the Committee on the appropriate penalty. In the present case since Mr Bijl is aged 56 erasure means the end of his medical career. The Committee have not expressly said why this, the maximum sentence available, was necessary in this case. So far as they clearly thought this was a serious lapse which they describe as the appellant abandoning his patient when her condition was still serious, their Lordships entirely agree. However the appellant accepted that his decision to leave the hospital was certainly a mistake, but as already mentioned, he clearly determined never to make that mistake again. Their Lordships note that there was a period of over four years between the operation and the Committee's decision when these serious charges were outstanding. During that time Mr Bijl did succeed in obtaining employment as a locum consultant urologist in other hospitals, without so far as appears any complaint about the standard of his work. While giving great weight to the judgment of the Committee their Lordships feel difficulty in the light of these circumstances in being satisfied that erasure involving a complete cessation of Mr Bijl's medical work was necessary when suspension with the possibility of imposing detailed conditions on his carrying on practice is available. The two charges of which Mr Bijl was convicted arose out of one operation, at the later part of a career of service in Holland, Nigeria and the United Kingdom. Both involved serious errors of judgment but neither involved any allegation against his practical skills as a doctor such as might be difficult to improve at a late stage of a career. Mr Bijl has had a serious lesson which on the evidence available should prevent a repetition of these errors of judgment, were he to be allowed to practise in the future, particularly if he does so under conditions intended to avoid such repetition. Their Lordships' duty in the exercise of their responsibility in this very unusual case, when they cannot be satisfied that erasure was necessary, after giving full weight to the view of the Committee, is to act on their own view.
15. Their Lordships will therefore humbly advise Her Majesty that the appeal should be allowed and that in place of the direction for erasure there should be substituted a direction that the appellant be suspended for one year from the date upon which the hearing before the Committee was concluded. Their Lordships remit to the Committee the question of whether upon the expiry of the period of suspension the appellant's registration should be made conditional upon compliance with any requirements imposed in accordance with section 36(3)(c) of the Medical Act 1983. There will be no order as to the costs of the appeal.