The Judicial Committee of the Privy Council Decisions

 


Chaudhury v General Medical Council (GMC) [2002] UKPC 41 (15 July 2002)

Privy Council Appeal No. 78 of 2001

Dr. Maya Chaudhury Appellant

v.

The General Medical Council Respondent

FROM

THE COMMITTEE ON PROFESSIONAL PERFORMANCE

OF THE GENERAL MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 15th July 2002

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Present at the hearing:-

Lord Hutton

Lord Millett

Lord Rodger of Earlsferry

[Delivered by Lord Hutton]

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1. This is an appeal against a determination of the Committee on Professional Performance (“the CPP”) of the General Medical Council (“the Council”) on 10th August 2001 whereby the CPP, having found that the standard of the appellant’s professional performance had been seriously deficient, directed that her registration in the register should be suspended for a period of 12 months. The appellant no longer appeals against the determination that her professional performance had been seriously deficient and appeals only against the direction that her registration be suspended.
Background
2. The appellant carried on a single doctor general practice in St. Helen’s and Knowsley in a very deprived area of Merseyside. She was brought to the attention of the Council by St. Helen’s and Knowsley Health Authority in January 1999. Pursuant to the provisions of the General Medical Council (Professional Performance) Rules 1997 the information provided was considered by a medical screener appointed by the Council who decided that the appellant should undergo a performance assessment and the appellant agreed to this proposal. The assessment panel were composed of two doctors and a lay person and they carried out their assessment of the appellant in March and June 2000. In or about March 2001 the assessment panel submitted their lengthy and detailed report to the Council. The conclusions of the assessment panel were as follows:

“Summary

11.1 Phase I identified problems in the areas of clinical decision making, communication with patients and staff, participating in a team, involving patients in clinical decision making, identifying the central role that she has as a general practitioner, being judicious in the use of resources and working with patients and staff to an agreed outcome. Her clinical practice was demand led and she responded to patient pressure. She had no systematic review of clinical activities and no system for follow up either of repeat prescribing or of clinical care. Her record keeping lacked consistency and on occasion did not include the full and necessary details to provide an ongoing record for adequate patient care. Her consulting style was directive and she tended not to listen to patients. She tended to talk at them and not to involve them in the decision making process. There is evidence that she was judgmental in her dealings with patients and did not seek to explain fully to the patient the reasons for the judgement she had made. The assessors are of the opinion that patient privacy and dignity could be improved on the premises. Though she referred to other health professionals, the referrals were occasionally inappropriate and demand led. She was perceived as an isolated and lonely doctor who is not receptive to criticism and did not partake in any serious way in ongoing clinical or managerial audit. She appeared to members of staff and other health professionals, as being, defensive and unpredictable.

11.2 Phase II confirmed that she had a severe deficit in clinical knowledge as judged by the EMQ, skills deficits as judged by the OSCE and serious deficits in her overall clinical performance as detailed by the simulated surgery. The results of the simulated surgery confirm the findings of Phase I particularly in relation to her performance in the case based orals and the observation of practice.

11.3 The assessors agreed that her strengths were her availability, the fact that she took on patients who have major difficulties and that she is committed to single handed practice in an area of high deprivation. The assessors were lead to believe that Dr Chaudhury had, in the last few years, a period of marked personal difficulty and despite this has continued to work.

13 OPINION REGARDING FURTHER ACTION

13.1 The results of the Phase I and Phase II assessments confirm that there are serious deficiencies in Dr Chaudhury’s performance as a General Practitioner.

13.2 It is the opinion of the assessors that in order to attain an acceptable standard of practice, Dr Chaudhury would require an extensive period of remedial training. This should be specifically aimed to address the issues identtified above but, in particular the following require attention: clinical knowledge, communication and consulting skills and her approach to the professional management of her practice including such aspects as team working and clinical audit. The assessors are of the opinion that this should be conducted in an environment where Dr Chaudhury can be supported and the positive affects of team working, and healthy inter-professional relationships demonstrated to her. It will require intensive formative appraisal and knowledge assessment.

13.3 The assessors are of the view that the period of remedial training should be a minimum of 12 months.

13.4 The assessors are of the opinion that Dr Chaudhury should never work in single-handed practice.”

3. After the receipt of the assessment panel’s report the case co-ordinator of the Council referred the case to the CPP.
4. A hearing took place before the CPP for three days on 8th-10th August 2001 at which the appellant and the Council were represented by counsel. At the hearing the CPP had before them the original complaints which had prompted the St. Helen’s and Knowsley Health Authority to bring the appellant to the attention of the Council, details of the meetings of and reports to the Health Authority, the written observations of the appellant, and the report of the assessment panel. The CPP were also supplied with transcripts of the third party interviews carried out in the course of the assessment and further documents relating to the case-based orals and some of the tests which the appellant underwent in the course of the assessment. In addition Dr. Malcolm Campbell, one of the doctors on the assessment panel, was called to give evidence on behalf of the Council and the appellant gave evidence on her own behalf.
5. In the light of the submissions advanced to the Board on behalf of the appellant and on behalf of the Council it is relevant to set out the following parts of the evidence of Dr. Campbell. In the course of his cross-examination he said:

“Q. You are aware that you are also able to make a recommendation that a practitioner ceases practice?

A. Yes.

Q. You did not make that recommendation in the case of Dr Chaudhury?

A. No.

Q. Why not?

A. Sorry? Would it not be more appropriate to say why should you make such a recommendation? We saw no reason to believe that Dr Chaudhury continuing in practice, within certain situations, would be likely to be of sufficient detriment to the public to require that.

Q. That is exactly the test I suspect the Committee may well have in mind.

A. Yes.

Q. There are two aspects to your recommendation, the first is in relation to remedial training, and the second is in relation to single-handed practice. I wanted to deal with the single-handed practices issue first. You set the scene for Dr Chaudhury's practice very well: a brave doctor in an extremely deprived area, and in that extremely deprived area one of the few if not the only doctor who will keep dealing with some exceedingly difficult patients?

A. Yes.

Q. If Dr Chaudhury were to address her knowledge base by some form of retraining - we can discuss the mechanics of that in a moment - and she were to take part in audit activities and local various meetings and so on, would the dangers of isolation not, to a large degree, be removed?

A. Yes. I think once again this was written a long time ago. If asked to revisit 13.4 today, I think I would say that despite our discussions, I remain of the view that Dr Chaudhury was professionally isolated. That is my opinion and remains my opinion. I believe that professional isolation has to be dealt with. To say she should never work in a single-handed practice is -

Q. A strong recommendation?

A. I would be happy to recant on that recommendation and say what I understood by that, and what I think I would say now, is that Dr Chaudhury should not work in professional isolation. The easiest way not to work in professional isolation is to be part of a bigger group than being single-handed. Having said that, in these days of primary care groups and primary care trusts - and time does move on, and has moved on over the past year - it would be feasible (I am not saying it would be easy) to be in single-handed practice while at the same time not being professionally isolated. …”

Later in his cross-examination he said:

“Q. If one imposed a condition on Dr Chaudhury's registration that she, for example, has regular case reviews with someone such as Dr Mathie?

A. Sorry to interrupt. I was going to say the difficulty the Committee always has in this type of situation is dealing with the real world. Tony Mathie is a very good chap and a sound person, but he is very busy. He could not come down daily, or every second day, to Dr Chaudhury's practice and sit and chat for a couple of hours. The practicalities are the things the Committee have to think about.

Q. With that in mind, if we can revisit the issue of Dr Chaudhury staying in her own practice, what would be needed to deal with her professional isolation, in practical terms in the real world?

A. One of the situations I have encountered - there are always local solutions for local difficulties - has been a situation where nowadays in general practice we have higher professional training fellows, or similar things. These are doctors who have finished their normal GP training, have done the vocational training year, who are then going on to do other new things. The LSI(?) initiative in London did similar type things. It would be terrific experience for one of these young, recently vocationally trained doctors to go into her practice and work with her for a year or so, sharing the workload, introducing hopefully new ideas, etcetera. Dr Chaudhury would no longer be in single-handed practice for that year they would be together. I believe that in some situations there is funding for that kind of thing. It certainly has been funded elsewhere.

Q. That is one example. You discussed earlier the possibility of someone coming in and conducting a regular case based oral exam.

A. Not like that. In a sense, but nurturing and supportive.

Q. A slightly different context. Is that a practical arrangement?

A. I do not know. I think it is unlikely. The budgets for postgraduate departments are not huge. The manpower is not great. I think it would be tokenism if it were to happen.

Q. Tokenism ...?

A. Token time-wise; would come in once a month and have a chat, which in my view would be grossly inadequate.”

At the conclusion of his evidence a member of the CPP put a question to Dr Campbell with reference to the possibility of a young and highly skilled doctor joining the appellant in her practice:

“Q. Do you see that as a practical possibility?

A. I think the GP registrar one is much more practical, and much more likely to be effective. I think there are all sorts of potentials.

Q. You are now talking about the training of being a GP registrar?

A. Yes.

Q. You see that as answering her training needs, as you saw them a year ago?

A. Yes.

Q. You may or may not be able to help me with the way in which this would happen. She would not be able to do that in her existing practice I assume?

A. No. If she was going to become effectively a GP registrar? She could go anywhere in the country, but not in her existing practice. She would have to go to an approved training practice. That practice would have to seek the agreement of the local postgraduate dean in order for this to happen. So it would be a carefully organised and structured thing, but there are training practices within a very short distance of Dr Chaudhury's practice.

Q. Am I right in assuming that a locum would be put in the practice for a year, or am I asking you things you cannot answer?

A. It depends. It is possible; it may not be. That is a financial issue, as much as anything else. The problem is if Dr Chaudhury is working as a GP registrar, she could not be registered as a principal with the Health Authority at the same time.”

The appellant said in the course of her evidence:

“Q. Dr Chaudhury, if this Committee were to decide that your performance was seriously deficient, and decided that you required the sort of training that Dr Campbell outlines, what would your attitude to that be?

A. I am ready to take the training and to have more knowledge whatever is suggested. I am ready to take these, provided I do all these activities in my practice.

Q. You heard him discussing two methods of increasing your knowledge base, and so on. One involved acting as a GP registrar outside your practice, the other involved effectively a high flying GP coming in two and a half days a week, something of that nature, spending the rest of his time in research. Do you feel, if such an individual could be found, that that would work?

A. I do not know until I go through the whole process, but I would definitely welcome that opportunity to update myself with the help of another professional, newly qualified with new knowledge, to be working with me in the same practice.”

6. Section 36A of the Medical Act 1983 provides:

“(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct –

(a) 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

(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified.”

7. At the conclusion of the hearing and after the CPP had deliberated the Chairman announced that the Committee had decided that the appellant’s standard of professional performance had been seriously deficient and that it was necessary in the public interest to suspend her registration for a period of 12 months. The Chairman stated that in reaching the decision that the appellant’s standard of professional performance had been seriously deficient. The Committee had found that:

“… your professional performance has been seriously deficient in the areas of good clinical care in relation to diagnosis, investigations and prescribing, record keeping, referral practises, audit, maintaining your practice, working in teams and your communication skills.

Within these and other areas explored by the assessment, the Committee noted with special concern the evidence in the assessment report that:

1. Your history taking was found to be brief and superficial and your did not adequately listen to patients’ concerns.

2. You repeatedly made assumptive clinical judgements and did not respect the right of patients to be fully involved in decisions about their care.

3. You had an inadequate system for following up patients.

4. Vaccines were not correctly stored at the surgery.

5. You did not carry out any ongoing audit in the practice or any systematic review of clinical activity.

6. You had difficulties in your relationships with fellow health professionals and your approach to delegation and referral was inappropriate.

The Committee were also concerned about the deficiencies shown by the assessment of your professional knowledge and skills. The Committee are satisfied that these assessments confirm that you have not been meeting the professional standards appropriate to the work you have been doing.”

The Chairman then stated:

“Having reached a determination that your performance has been seriously deficient, the Committee first considered whether it would be sufficient, for the protection of members of the public, for them to impose conditions on your registration, including a requirement that you should undergo remedial training, as suggested by the Assessment panel in their report.

The Committee recognise that you practise in difficult circumstances. However, in their view, the evidence available to them clearly indicates that the standard of your performance gives serious cause for concern in many areas, that you have fundamental deficiencies of knowledge and skills, and that your practice arrangements fell well short of the standard that patients are entitled to expect.

Furthermore, the Committee are concerned that your insight into the deficiencies in your practice is limited and you have been unable to respond positively to the support offered by the Health Authority or the Director of Postgraduate General Practice Education.

Taking all these matters into account, the Committee believe that you present a risk to patient safety. They have paid due regard to your past performance and the circumstances of your practice. In exercising their judgement, they consider that it is necessary in the public interest to suspend your registration for a period of 12 months, and they have accordingly so directed. In reaching this decision, the Committee are satisfied that they have weighed your interests against the safety of the public and the public interest.

The effect of the direction is that, unless you exercise your right of appeal, your registration will be suspended for a period of 12 months, beginning 28 days from today.”

The Chairman concluded by saying what would happen at the end of the period of suspension:

“Shortly before the end of the period of suspension of your registration, the Committee will resume their consideration of your case. At that time they will review the steps, if any, that you have taken since this hearing to improve the standard of your performance.

The Committee suggest that, in the interim, before the resumed hearing, you seek and follow the advice of your Regional Director of Postgraduate General Practice Education as to whether there is further action which you might take to remedy the deficiencies in your professional performance. A copy of this determination and the assessment report will be made available to the Regional Director.

If you take such action, the GMC's office will seek a report from the Regional Director before the resumed hearing.

The papers which the Committee will expect to have before them at the resumed hearing will therefore include any reports received from your Regional Director of Postgraduate General Practice Education, and/or any other person who may have assisted in providing you with remedial help. You will also have an opportunity to provide further written observations for the Committee and will be invited to attend the resumed hearing.”

8. The appellant appealed to the Board pursuant to section 40 of the Medical Act 1983 and section 40(5) provides that an appeal from the CPP shall lie only on a question of law. As the Board explained in its judgment delivered by Lord Steyn in Stefan v General Medical Council (6 March 2002, PC Appeal No. 92 of 2001) at page 5 the term “a question of law” in section 40(5) is given a wide meaning:

“The distinction between law and fact is often crucially influenced by the context. Here their Lordships are satisfied that a generous interpretation of ‘a question of law’ is needed so as to ensure that no injustice will remain uncorrected. In the context of section 40(5) it is within the appellate jurisdiction of the Board to consider whether there is any or sufficient evidence to support a material finding. A clearly erroneous finding may disclose an error of law warranting interference. And a material misunderstanding of the evidence may amount to an error of law. And it goes without saying that any unfairness in the hearing and decision making of the Health Committee may invalidate its decision. Without trying to be exhaustive about the circumstances in which they may intervene their Lordships are satisfied that their appellate jurisdiction is wide enough to ensure that justice is done”

9. The appellant advanced two grounds of appeal.
Ground 1
10. Counsel for the appellant, Mr Matthews (who had not appeared at the hearing before the CPP), submitted that in breach of article 6 of the European Convention on Human Rights the CPP did not give the appellant a fair hearing because the case which the appellant had to meet, and which she and her counsel came to the hearing to meet, related to the conditions on her registration which would have to be imposed to enable her to continue to practise in such a way as would protect the public. In support of this submission Mr Matthews relied on:

(i) the opinion of the assessment panel at the conclusion of their report which did not recommend that the appellant should be suspended but recommended that she would require an extensive period of remedial training;

(ii) the replies of Dr. Campbell in cross-examination set out above that when they made the report the assessors saw no reason to believe that the appellant continuing in practise, within certain situations, would be likely to be of sufficient detriment to the public to require her suspension, and that (as at the time of the hearing) it would be feasible (although he was not saying that it would be easy) to be in single-handed practice while at the same time not being professionally isolated;

(iii) in their letter of 11th June 2001 informing the appellant that her case had been referred for a hearing before the CPP the Council stated that the Council’s solicitor proposed to call one of the doctors who had prepared the assessment report to give supplementary oral evidence at the hearing, which suggested that the Council was minded to accept the report, including its recommendation for an extensive period of remedial training rather than suspension.

Mr Matthews also submitted that if, in the course of the hearing, the CPP were giving serious thought to the suspension of the appellant the Committee should have “flagged this up” so that the appellant could have called further evidence and her counsel could have advanced submissions as to why such a decision should not be taken.
11. Their Lordships do not accept the submissions advanced in support of the first ground of appeal and consider that there was no unfairness in the way in which the CPP conducted the hearing. In their opinion the appellant and her counsel must have been fully aware that at the conclusion of the hearing the Committee might suspend the appellant’s registration. Section 36A of the Medical Act 1983 makes it clear that if the CPP find that a doctor’s standard of professional performance had been seriously deficient the Committee must either suspend his or her registration or impose conditions on his or her registration. The letter sent by the Council to the appellant also made it clear that a direction for suspension might be made at the conclusion of the hearing. The second page of the letter to the appellant dated 11th June 2001 stated:

“Where the Committee finds that a doctor’s professional performance has been seriously deficient, the Committee will either impose conditions on the doctor’s registration for a period of up to three years or suspend the doctor’s registration for a period of up to 12 months.”

And on the third page at the conclusion of the letter the Council again stated:

“At the end of the hearing the Committee will decide, in accordance with paragraph 10(h) of schedule 3 to the Rules, whether they find the standard of your professional performance had been seriously deficient; and, if so, whether they should direct that your registration should be conditional on your compliance with certain requirements for a specified period or that your registration should be suspended.”

12. It is also clear that at the hearing counsel for the appellant appreciated that after a finding of serious deficiency in the appellant’s standard of professional performance the CPP might suspend her registration and he referred to the issue of suspension in his closing submissions and stated:

“If only I could move on to the issue of sanctions which is clearly only a subject to be reached if you have determined her past performance was seriously deficient. The starting position, in my submission, is to ask yourself, having made the findings that you did under the first stage - the determination of past deficient performance - just how big a concern do you have that Dr Chaudhury is a continuing and clear danger to patients? That will give you a guide as to the public interest which you are seeking to protect in exercising any sanctions and it is worthwhile in my submission noting the following: obviously, the lack of complaints to date of a clinical nature; the fact that at each stage of this assessment there could have been an interim order or suspension or a conditional registration - that did not happen; the fact that the assessment panel and Dr Campbell was well aware of this - was in a position to recommend that she cease to practice, i.e. be suspended and it did no[t]; the fact that Dr Campbell when questioned agreed with that. When I put to him, ‘Why didn't you recommend suspension?’ his answer was this - and I take this from my instructing solicitor's note – ‘We saw no reason to believe that Dr Chaudhury would be of sufficient detriment to the public to require that.’ Obviously, that was an assessment which was made as of July 2002 where there has been the absence of any subsequent complaint. In my submission, the case at this point is even stronger.”

Therefore their Lordships reject the first ground of appeal.
Ground 2.
13. Mr Matthews submitted further and in the alternative that the CPP erred in law because the decision to suspend the appellant’s registration (and thereby, he submitted, to deprive her of her livelihood) instead of imposing conditions on her registration was disproportionate. He submitted that the effect of suspension on the appellant was disproportionate to the need to protect the public, and that the imposition of conditions would have given sufficient protection to the public. Mr Matthews also submitted that the composition of the CPP was such that they were not well qualified to decide whether to suspend or to impose conditions because they did not have experience of working in a single-handed practice in a deprived area.
14. The CPP had found that the standard of professional performance of the appellant had been seriously and fundamentally deficient in the important respects set out in their decision. The Committee were also concerned that the appellant’s insight into the deficiencies in her practice was limited and that she had been unable to respond positively to the support which had been offered to her by the Health Authority or by the Director of Postgraduate General Practice Education. The Committee also stated that in reaching their decision they were satisfied that they had weighed the appellant’s interests against the safety of the public and the public interest. Therefore their Lordships are satisfied that the decision of the CPP to suspend the appellant’s registration for a period of twelve months was fair and reasonable and cannot be regarded as disproportionate (and they will return to consider the subject of proportionality at the conclusion of this judgment). Their Lordships are also satisfied that the CPP, which included a general practitioner and a hospital registrar, were fully qualified and capable of coming to a fair and proper decision on the issue of suspension.
15. In his written submissions Mr Matthews relied on the judgments of the Administrative Court (Brooke LJ and Newman J) in Madan v The General Medical Council [2001] Lloyd’s Rep Med 539. In that case misconduct was alleged against a doctor and before there had been a full hearing of the allegations against her the Interim Orders Committee of the Council suspended her registration pursuant to section 41A of the Medical Act 1983 which provides:

“(1) Where the Interim Orders Committee are satisfied that it is necessary for the protection of members of the public or is otherwise in the public interest, or is in the interests of a fully registered person, for the registration of that person to be suspended or to be made subject to conditions, the Committee may make an order —

(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding eighteen months as may be specified in the order (an ‘interim suspension order’); or

(b) that his registration shall be conditional on his compliance, during such period not exceeding eighteen months as may be specified in the order, with such requirements so specified as the Committee think fit to impose (an ‘order for interim conditional registration’).”

16. The helpful commentary on Madan in Lloyd’s Law Reports at page 549 sets out the background to the establishment of the Interim Orders Committee:

“The establishment of the Interim Orders Committee of the General Medical Council in 2000 was a reaction to strong public opinion following a series of high profile cases involving serious misconduct by medical practitioners (most notably that of Harold Shipman) where the doctor had been free to continue to practise (if not in custody) whilst awaiting determination of charges. The Interim Orders Committee deals with cases substantially on the papers alone, often at a very early stage in any complaint process when the complaints have not even been formulated into specific allegations or charges, often on incomplete information and in a time restricted fashion (the Interim Orders Committee may be considering as many as five or six cases in a day and the time allocated for hearing and determination is unlikely to exceed two hours and is often less). Although the doctor enjoys the presumption of innocence (the Professional Conduct Committee of the General Medical Council adopting the criminal burden and standard of proof and essentially applying the rules of criminal procedure) his right to practise medicine and his career can be irreparably affected by an order made on the basis of unproven allegations in circumstances where he is not afforded an opportunity to test the evidence against him or mount his defence. Early cases before the IoC raised concerns that some doctors had been suspended when the final outcome, before the PCC, might not even lead to a finding or serious professional misconduct, let alone suspension or registration or erasure.”

17. The Administrative Court was understandably concerned to ensure that a doctor was not made subject to suspension in circumstances where the harm done to her by suspension would outweigh the danger to the public if she were not suspended. The following paragraphs of the headnote set out the decision of the court:

“(1) (By concession) Article 6 of the European Convention was engaged at the IoC because an interim suspension order substantially impaired the right to practise as a doctor and sufficiently interfered with a civil right (see paras 46, 47 and 48);

(2) It was therefore incumbent upon the IoC when considering the question whether the need to protect the public required suspension rather than conditional registration to balance the need against the consequences which an order for suspension would have upon a practitioner and to satisfy itself that the consequences of the order were not disproportionate to the risk from which the IoC was seeking to protect the public (see para 50);

(3) It is incumbent upon any court or tribunal conducting a fair hearing that no response is made which affects a doctor’s right to practise his/her profession which is not proportionate in the context of unproved complaints made, especially if they are said to call for interim relief restricting or suspending the doctor’s right to practise for up to 18 months until a full hearing can be convened (see para 80);

(4) When a specific argument was advanced to the IoC as to why the statutory requirements and protection of public interest could adequately be met by an order for conditional registration rather than suspension the Claimant was entitled to expect reasons to be given as to why such an argument was rejected and why the IoC when weighing the interests of the practitioner against the need for public protection considered a suspension order proportionate to the risk identified (see para 64);

(5) The interests of the practitioner which had to be weighed were not just paternalistic self protection but as an essential ingredient included consideration of the impact of a suspension order upon a practitioner’s right to practise his/her profession (see para 68);

(6) The staggered statutory review scheme laid out in section 41A would come to nearly nought unless the right to practise is elevated to the status of a civil right requiring interference with it to be proportional, particularly when the suspension and its duration could give rise to serious and grave consequences for the future professional career of a doctor as well as creating immediate consequences of hardship (see para 68).”

18. The Board is in full sympathy with the concern of the court that the rights of the doctor should be protected in the manner which the headnote states. However their Lordships did not have the benefit of full argument on the judgments of the Administrative Court and therefore they wish to reserve their opinion on the reasoning in the extempore judgments that it was the application of article 6 of the European Convention on Human Rights which required the Interim Orders Committee to weigh the interests of the doctor against the need for public protection and to consider whether a suspension order was proportionate to the risk identified.
19. The reasoning of the court is set out in the following passages of the judgments. Newman J stated at paragraph 50:

“Given that Article 6 is engaged by an IoC Committee hearing to suspend or conditionally register, it seems to me that the fundamental position for this case comes down to this: (1) the Committee had to make a choice between conditional registration and interim suspension and how to consider whether the need to protect the public interest required suspension rather than conditional registration. That, as formulated, expresses nothing surprising, since that is what section 41 of the Act requires. But, (2) in my judgment, it was incumbent upon the Committee to balance the need so assessed under (1) against the consequences which an order for suspension would have, upon the applicant and to satisfy themselves that the consequences of the remedy on the applicant were not disproportionate to the risk from which it was seeking to protect the public.”

and at paragraph 68 he stated:

“But the staggered review will come to nought or to nearly nought if the right to practise is not elevated to the status of a civil right requiring any interference to be proportional.”

Brooke LJ stated:

“79. This application has given this court the opportunity to draw attention to the implications of Article 6(1) of the European Convention on Human Rights in a case of this kind (see Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1, paragraph 49.)

80. The European Court of Human Rights emphasised in that case that even when a temporary suspension order is made, which was a suspension order of 15 days for two of the three applicants before that court, it undoubtedly constitutes a direct and material interference with the doctor’s right to continue to exercise in the medical profession. The court said that Article 6(1) was engaged. It goes without saying that it is incumbent under Strasbourg jurisprudence that a court or tribunal conducting a fair hearing must make no response affecting a doctor’s right to practise her profession which is not proportionate in the context of the unproved complaints that have been made against her, especially if they are said to call for interim relief restricting or suspending the doctor’s right to practise for up to 18 months until a full hearing can be convened.”

20. It is clear from the judgment of the European Court of Human Rights (“the European Court”) in Le Compte, Van Leuven and De Meyere v Belgium (1982) 4 EHRR 1 that article 6 applies to a hearing by a committee of the Council because such a committee is a tribunal which determines a civil right of a doctor, namely his or her right to practise medicine, and therefore the committee must be an independent and impartial tribunal which gives a fair and public hearing to the matter before it. But the judgments of the Administrative Court appear to go further and to state that in coming to a decision whether to suspend registration the committee is governed by the Convention doctrine of proportionality.
21. Lester and Pannick on Human Rights Law and Practice at para. 3.10 in describing the principle of proportionality state:

“A restriction on a freedom guaranteed by the Convention must be ‘proportionate to the legitimate aim pursued’.”

and in his Sargant Memorial Lecture, Public Law (1998) 221 at 234 Lord Irvine of Lairg LC states that the application of the doctrine of proportionality:

“is to ensure that a measure imposes no greater restriction upon a Convention right than is absolutely necessary to achieve its objectives.”

Their Lordships observe that although the right to practise medicine is a civil right, it is not one of the rights guaranteed by the Convention.
22. There is no passage in the judgment of the European Court in Le Compte and Van Leuven v Belgium which states that a decision by a disciplinary committee to suspend registration is governed by the principle of proportionality. In the later case of Albert and Le Compte v Belgium (1983) 5 EHRR 533 the submission advanced on behalf of Dr Le Compte was not that the decision to strike his name from the register was disproportionate but that it constituted an inhuman or degrading punishment in breach of article 3 of the Convention. The court rejected this submission and made no reference to the principle of proportionality in its judgment. It stated at paragraph 22:

“The Court concurs in substance with the contrary opinion expressed by the Commission in paragraph 57 of its report. It observes that withdrawal, as a disciplinary measure, of the right to practise is intended to penalise a doctor whose serious misconduct has shown that he no longer satisfies the required conditions for exercising the medical profession. The Court sees no cause to question the very principle of the legitimacy of measures of this kind, which moreover exist in the majority of the member States of the Council of Europe. Neither is it called upon to determine whether this measure was justified in the present case.

Taken on its own, the withdrawal complained of had as its object the imposition of a sanction on Dr Le Compte for the misconduct imputed to him, but not the debasement of his personality; nor, as far as its consequences are concerned, did it adversely affect his personality in a manner incompatible with Article 3.

There has accordingly been no breach of that Article”.

23. Section 41A of the Medical Act 1983 gives the Interim Orders Committee a discretion - “the Committee may make an order”. In exercising that discretion the Committee must act in a way which is fair and reasonable and this will require the weighing of the interests of the doctor against the need for public protection and the common law has recognised that a court may intervene to set aside a penalty or a sanction imposed by a disciplinary committee or an administrative authority if it is too severe and out of proportion to the occasion, see: R v Northumberland Compensation Appeal Tribunal, Ex parte Shaw (1952) 1 KB 338, 350, R v Barnsley Metropolitan Borough Council Ex parte Hook (1976) 1 WLR 1052, 1057, and R v Highbury Corner Magistrates’ Court Ex parte Uchendu (1994) 158 JP 409, 411.
24. Their Lordships consider that in relation to determinations by a committee of the Council there is little or no difference between the requirement of the common law that the committee must act in a way which is fair and reasonable and the Convention doctrine of proportionality and therefore they consider that the ruling of the Administrative Court as to the need for proportionality can be upheld on that common law ground. But for the reasons which they have given their Lordships wish to reserve their opinion on whether the Convention doctrine of proportionality has direct application to the case considered by the Administrative Court in Madan and to the present case.
25. Their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed. The appellant must pay the respondent’s costs before the Board.