The Judicial Committee of the Privy Council Decisions

Ahmed v. General Medical Council (GMC) [2001] UKPC 49 (19 November 2001)

Privy Council Appeal No. 5 of 2001

Dr. Abdul Baten Jalal Ahmed 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 19th November 2001

------------------

Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

Sir Philip Otton

[Delivered by Lord Rodger of Earlsferry]

------------------

1. This is an appeal from a decision of the Professional Conduct Committee of the General Medical Council on 19 December 2000 finding that the appellant had been guilty of serious professional misconduct, directing that his name should be erased from the register and ordering that his registration should be suspended forthwith.
2. The charge against the appellant was that, being a registered practitioner, in March 1997 he "offered to perform circumcision operations on females". The appellant denied the charge but, after hearing evidence, including oral evidence from the appellant, the Committee found the charge established and held that the appellant's conduct had amounted to serious professional misconduct. The first submission on behalf of the appellant was that the Committee should not have found the charge established.
3. To understand the points made on the appellant's behalf, it is necessary to consider briefly the form of the evidence adduced against him. The events in question are alleged to have occurred in March 1997 at a time when the appellant was living in Manchester and working as a locum general practitioner in London and Manchester. Channel 4 Television were making a documentary about the practice of female circumcision in this country where it has been illegal since the Prohibition of Female Circumcision Act 1985 came into force. The documentary was eventually broadcast under the title "Cutting the Rose" in October 1997. In the course of preparing the programme the producer, Elizabeth Bloor, tried to discover people who were prepared to carry out female circumcision. For that purpose she arranged for a lady referred to as "Amina" to contact the appellant.
4. Ms Bloor gave evidence to the Committee to the effect that Amina had first telephoned the appellant at his home address on 18 March 1997. The telephone call was not recorded but Ms Bloor said that she had been in a position to hear both sides of the conversation and that she had taken a note of it at the time. Although she did not have the note with her, Ms Bloor recalled that the appellant had agreed in principle that circumcision could take place. But he wanted an address for Amina and he wanted to call her back later to make an arrangement.
5. Ms Bloor spoke to a further telephone conversation between Amina and the appellant on 25 March. This one had been recorded and the transcript was put in evidence before the Committee. It was accepted, however, that the first part of the conversation had not been recorded. Ms Bloor said that the missing part amounted to probably less than a minute during which the appellant had been trying to establish an address for Amina. In the course of the conversation an arrangement was made for Amina to go to the appellant's house on 28 March.
6. On 28 March Amina duly went to the appellant's house but she had a camera and video recording device concealed in a handbag. By means of that device the conversation between the appellant and Amina on that occasion was recorded. The recording was played to the Committee which also had a transcript of what had been said.
7. Although counsel who appeared for the appellant before the Committee did not accept that the transcripts were accurate, Mr Jones, who appeared for him before the Board, explained that he was not suggesting that the transcript was inaccurate.
8. Mr Jones's first point was that the Committee's decision was flawed because it had proceeded on inadequate and incomplete evidence. He suggested in particular that, when making a television programme, inevitably more was left on the cutting-room floor than made its way into the final programme. Therefore, there was a risk that the Committee had been given a less than complete picture. Also the quality of the sound was poor and there was a risk that the Committee had been impressed, not by what the members themselves had actually heard the appellant saying, but by the captions on the screen giving a version of what he had said. Their Lordships reject these contentions, the starting point for which must be that the Committee had considered the television programme as transmitted rather than the video recording made by Amina. But as Miss Norton, counsel for the respondent, pointed out, and as is clear in any event from the transcript of the hearing, the Committee did not look at the television programme: they were shown the original video recording which had not been edited and had no captions.
9. The next submission from Mr Jones was that the evidence was incomplete because there was no recording of the first telephone conversation and the start of the second was missing. So far as the first conversation is concerned, it really played no significant part in establishing the case against the appellant. The main point had been that the appellant had wanted to establish Amina's address. In that situation we do not consider that the lack of any recording of that conversation is a matter of any weight. So far as the second conversation is concerned, the suggestion for the appellant was that in the initial, missing, portion he had told Amina that he did not perform female circumcision procedures and that he only circumcised males. But that was a point which the appellant made in the course of his evidence and it was accordingly before the Committee for their consideration. Again, the fact that the Committee did not have a recording of the opening part of the conversation is simply a matter which it had to put into the balance when considering the evidence of what the appellant said in the part that was recorded.
10. In their Lordships' view the evidence from the second telephone conversation and from the conversation recorded on 28 March was more than sufficient to establish that the appellant had indeed offered to circumcise girls. It is unnecessary to go through it in detail but the main points can be noted.
11. In the second telephone conversation Amina says to the appellant "About my daughter. I want to do a 'sunna' on my daughter" and asks if he can do it that week. He eventually replies "Well, the thing is, listen, I cannot do it this week, okay" and after some further discussion the appellant arranges for Amina to go to the house on 28 March. The inference from what is said in this conversation is that the appellant is arranging for Amina to go to his house in connexion with Amina's desire to have her daughter circumcised.
12. The conversation recorded on 28 March is somewhat longer. Amina begins by saying that she wants to circumcise her daughter, to which the appellant replies "For circumcision. I see, you called on the telephone". When Amina says "Yeah" the appellant immediately asks "How old is your daughter?" and then asks where she is and, when told that she is at home, the following conversation occurs:-

"Ahmed: She's at home. We usually do the male ones, you know, she's a girl. Which country are you from?

Amina: Somalia

Ahmed: Somalia. So you circumcise the girls.

Amina: Yeah.

Ahmed: We usually do the men, the boys not the girls. You want to do the girls?

Amina: Yeah."

Their Lordships pause to observe that in this passage taken by itself the appellant's own words show that he was fully aware that Amina was asking to have her daughter circumcised. For that reason, even accepting that the appellant is hard of hearing and may not have heard everything that Amina said to him, their Lordships reject Mr Jones's submission that the appellant misunderstood what Amina was asking and thought that he was being asked to circumcise a male. Similarly, when Amina indicates that she wishes to have the operation performed on three girls and asks how much it will cost for each girl, the appellant indicates that the fee will be £50. He then asks "How many daughters? Three?" This passage and similar later passages confirm that the appellant was well aware that he was being asked to circumcise girls and finalised the arrangement by saying "Okay, come at four o'clock and £50 for each girl". On the strength of these passages in the evidence, the Committee was fully entitled to reject the appellant's evidence that he had thought that he was being asked to circumcise a male.
13. If it were necessary to find any additional reason for rejecting the appellant's evidence, then it is to be found in the change in his position as to the meaning of the word "sunna" which Amina used both in the second telephone conversation and during the video recording. The word is Arabic and refers to a particular kind of female circumcision, involving the removal of part of the clitoris and, sometimes, of the labia. During the video recording Amina asks the appellant whether he can do both "the stitch" and "the sunna", to which he replies "Yes". When interviewed by Detective Constable Phelan on 28 January 1998 the appellant said that "sunna" was an Arabic word but that he did not know its meaning. By contrast, when giving evidence to the Committee, the appellant said that "Sunna" was a boy's name and that he had understood the word to be used in that way. So he had told Amina "If it is Sunna, yes, bring. I will do it." – meaning that she should bring the boy called Sunna and he would circumcise him. Not only does no such statement occur in the transcript but this construction of events is entirely inconsistent with the explanation that the appellant gave to Detective Constable Phelan. Their Lordships consider that the obvious inference is that both these "explanations" were false. They were simply unsuccessful attempts to get round the passages in the two recordings which show that the appellant well understood the term. In particular, he understood that, by asking whether he did "the stitch" and "the sunna", Amina had been asking him whether he did two forms of female circumcision.
14. For these reasons their Lordships are not only satisfied that the Committee was fully entitled to reject the appellant's evidence and to find that he had offered to circumcise three girls, but they themselves reach precisely the same conclusions on the evidence. Their Lordships are equally satisfied that the Committee was entitled to find that this offer constituted serious professional misconduct. As a registered medical practitioner, he was offering to commit a criminal act, one without any therapeutic value whatsoever, involving the mutilation of young girls. As Miss Norton rightly said, the Committee was entitled to regard it as abhorrent. Given these factors, there is not the slightest reason to question the Committee's judgment that the appellant's conduct amounted to serious professional misconduct.
15. In submitting that the sanction imposed by the Committee had been excessive, Mr Jones pointed out, correctly, that the mere offer to carry out female circumcision is not a crime and that there was no question of a conspiracy in this case where Amina had never had any intention that circumcision should take place. Their Lordships accept that submission, so far as it goes, but note that, from what can be gleaned from the evidence, the fact that the supposed operations as arranged by the appellant did not take place was not due to any step taken by him. Mr Jones also submitted that there was nothing in the evidence to show that the appellant had performed any female circumcisions in the past, whereas he had carried out between 500 and 1000 such operations on males. Their Lordships accept that submission which is consistent with the terms of the charge against the appellant, that he offered to perform the operations in March 1997. It is accordingly appropriate to consider the penalty on that basis. Finally, Mr Jones pointed out, again correctly, that the appellant - who was 65 at the time of the hearing - had never before been the subject of disciplinary proceedings. He also reminded the Board that the Committee had been supplied with certain testimonials from colleagues though he did not direct the Board's attention to the terms of any particular letter.
16. As Miss Norton observed, the Committee's finding was not of a single lapse of clinical judgment. Rather, it was that, on the occasion in question, the appellant had agreed to perform an illegal and abhorrent procedure of no therapeutic worth which would result in the permanent mutilation of the girls in question. Their Lordships also note that the appellant has persisted in denying the charge on a wholly untenable basis. This shows a lack of any sense of professional responsibility. In those circumstances their Lordships are satisfied that, taking all due account of the appellant's history and anything said on his behalf in the relevant testimonials, but also taking into account the public interest, the Committee was entitled to conclude that the only appropriate course to take was to erase the appellant's name from the register.
17. The Committee went further. It decided that, for the protection of members of the public, the appellant's registration should be suspended with immediate effect. That direction was made in terms of rule 32 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988:-

"If in any case the Committee determine to suspend the registration of a practitioner or to erase his name from the Register, the Committee shall then also consider and determine whether it is necessary for the protection of members of the public or would be in the best interests of the practitioner to order that his registration shall be suspended forthwith."

The effect of such a direction is that the practitioner's registration is immediately suspended, even though he appeals to this Board. In the absence of such a direction for immediate suspension, if the practitioner appeals, the direction to remove his name from the register does not take effect until the appeal is dismissed: section 38(1) of, and paragraph 10(1) of schedule 4 to, the Medical Act 1983. The High Court has power under section 38(6) to terminate any such suspension. In this case the High Court had not been asked to exercise that power and, accordingly, the appellant's registration had been suspended with immediate effect from 19 December 2000 even though he had subsequently appealed to this Board.
18. Under reference to the report of the decision of the Administrative Court in The Queen (Gupta) v General Medical Council 9 August 2001 (Case No CO/2496/2001), which had appeared in The Times on the morning of the hearing of this appeal on 16 October 2001, Mr Jones submitted that the Committee ought to have given the appellant's counsel an opportunity to make submissions on his behalf before making the direction for immediate suspension under rule 32. As Mr Jones himself recognised, this argument came somewhat too late to be of anything other than marginal relevance in the appellant's case since the rule 32 direction covered the period between the Committee hearing and the dismissal of his appeal. At most, Mr. Jones said, the fact that the Committee had gone on to make the rule 32 direction without hearing the appellant's counsel might indicate that they had been unduly anxious to treat the appellant with the maximum severity and so might suggest that the sanction of erasure of the appellant's registration had itself been excessive. For the reasons that they have already given their Lordships are satisfied that the sanction was not excessive and they accordingly reject that argument. In the result, therefore, the argument based on Gupta is to all intents and purposes moot in this case.
19. As the Administrative Court (Brooke LJ and Newman J) remarked, a direction under rule 32 is likely to have serious financial consequences and will invariably have very serious professional consequences. Newman J continued at paragraph 10:-

"Where a body exercising penal powers is contemplating imposing a penalty which is more severe than that which might normally be expected to flow from a finding of guilt, in our judgment, common principles of fairness require that the person who will be affected should have an opportunity of making representations against the making of such a special order."

His Lordship concluded at paragraph 13:-

"We have no doubt that the circumstances of this case called for the Committee to give notice of its intention to consider immediate suspension and to give the applicant an opportunity to make representations on the issue. Further, we have no doubt that it should be regarded as being a requirement in all cases where the Committee contemplate making such an order, for such notice to be given."

The court accordingly quashed the order for immediate suspension of the practitioner in that case.
20. Understandably, since Mr Jones had first become aware of Gupta when reading The Times on the morning of the hearing before the Board and had only then decided to raise the matter, Miss Norton had not had time to take full instructions on it. But she accepted that, in this case, the Committee had not indicated that it was contemplating making a direction under rule 32 and counsel had not had an opportunity to make submissions on the point. In proceeding in that way, the Committee had simply been following the practice which had been in place before the challenge in Gupta. She understood that the same point had been taken, successfully, in other cases. The Board has indeed been subsequently provided with the transcript of the decision of the Administrative Court in Burnham-Slipper v General Medical Council 31 July 2001 where Moses J followed the same approach at paragraphs 28 to 30. Miss Norton also understood, however, that in the light of these decisions, the Committee had modified its practice and would now give the practitioner or his representative an opportunity to be heard before it decided whether to make a rule 32 direction. While the matter was not argued before the Board and is therefore not one for decision in this case, their Lordships are satisfied that, if it proceeds in this way, the Committee will avoid any similar questions arising in future proceedings.
21. Their Lordships will therefore humbly advise Her Majesty that the appeal should be dismissed. The appellant must accordingly pay the respondent's costs before the Board.