The Judicial Committee of the Privy Council Decisions

 


Crabbie v. General Medical Council (GMC) [2002] UKPC 45 (23 September 2002)

ADVANCE COPY

Privy Council Appeal No. 7 of 2002

Elizabeth Morag Crabbie Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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

REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL, OF THE

11th July 2002, Delivered the 23rd September 2002

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

Present at the hearing:-

Lord Steyn

Lord Scott of Foscote

Sir Philip Otton

[Delivered by Lord Scott of Foscote]

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

1. On 11th July 2002, after hearing very helpful submissions from Mr Jenkins for the appellant and from Miss Vaughan Jones for the General Medical Council, their Lordships announced that they would humbly advise Her Majesty that the appeal ought to be dismissed for reasons to be given later. These are the reasons.
2. The appeal is against a direction given by the Professional Conduct Committee of the General Medical Council on 9th January 2002 that the name of the appellant, Elizabeth Morag Crabbie, be erased from the register.
3. The story is a tragic one. On 25th April 1999, Mrs Crabbie, while driving on the A94 towards Perth, failed to negotiate a left hand bend and veered onto the wrong carriageway. Her vehicle struck an oncoming car. The driver, aged 59 was killed. The passengers, his wife and 12 year old son, were seriously injured. Mrs Crabbie herself was seriously injured. A blood test taken at Perth Royal Infirmary disclosed that she had in excess of 240 mg of alcohol in 100 mm of blood. The legal limit is 80 mg. She was over three times above the legal limit.
4. She was in due course charged with causing death by dangerous driving and with driving after consuming so much alcohol that the proportion of it in her blood exceeded the prescribed limit. On 11th April 2000 she pleaded guilty to both charges in the High Court of Justiciary in Edinburgh and was convicted accordingly. On 25th April 2000 she was sentenced to five years’ imprisonment and was disqualified from driving for ten years.
5. The convictions were reported to the General Medical Council who instituted disciplinary proceedings. The case was heard by the Professional Conduct Committee (the PCC) on 9th January 2002. Medical evidence before the PCC indicated that at the time of the accident the appellant had been exhibiting features of an alcoholic dependency and counsel for the appellant asked for the case to be referred to the Health Committee to be dealt with by that committee rather than by the PCC.
6. The PCC accepted that the appellant’s fitness to practise might be seriously impaired by reason of alcohol dependency but, in view of the serious nature of the criminal convictions, refused the request for the case to be referred to the Health Committee. They took oral and written character evidence, testifying to the appellant’s worth as a citizen, and, particularly, as a respected and valuable general practitioner in a rural area of Scotland. But they concluded that:

“… the nature and gravity of the offence in this case is such that the sanctions of conditions and suspension would not adequately protect the public interest.”

and that in the public interest:

“… erasure is the only appropriate sentence.”

They added that in their view:

“… erasure is proportional to the nature and gravity of the offence.”

7. The appellant has appealed to the Privy Council. Her counsel, Mr Jenkins, who was also her counsel before the PCC, has put before their Lordships two grounds of appeal. First, it is submitted that the PCC erred in not referring the case to the Health Committee to be dealt with by them. Second, it is submitted that the decision to erase the appellant’s name from the register was wrong in principle and manifestly excessive. The case should, it is said, have been dealt with by imposing conditions ensuring that, after her release from prison, the appellant did not resume medical practice until she was fit to do so.
8. A review of the PCC’s handling of the case must start with a reference to the relevant statutory provisions which regulate the conduct of disciplinary proceedings instituted by the General Medical Council. The governing Act is the Medical Act 1983, as amended. Section 36(1) of the Act applies to two situations; first, where a doctor is found by the PCC to have been convicted in the British Islands of a criminal offence; second, where a doctor is judged by the PCC to have been guilty of serious professional misconduct. In either of these situations the PCC is empowered “if they think fit” to direct that the doctor’s name be erased from the register, or that the doctor’s registration be suspended for a period not exceeding twelve months, or that the doctor’s registration be conditional on his compliance for a period not exceeding three years with such requirements as the PCC “think fit to impose for the protection of members of the public or in his interests”.
9. Where the PCC has directed a suspension it has power to extend the suspension for a further period (not exceeding twelve months) or to direct that on the expiry of the suspension registration be conditional on compliance by the doctor with specified requirements.
10. Schedule 4 to the Act confers a rule-making power on the General Medical Council. The rules do not come into force until approved by the Privy Council (see para 1(5) of the Schedule). The relevant rules, duly made by the General Medical Council and approved by the Privy Council, are the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988, which came into effect on 15th January 1989.
11. Whether the case is based on a criminal conviction or is based on the conduct of the doctor, it is first placed before a “medical screener” (see rules 5 and 6). In the case of a conviction, the medical screener may, if it appears to him that the doctor’s fitness to practise may be seriously impaired by a physical or mental condition, take steps to have the case dealt with under the Health Committee (Procedure) Rules (see rule 7). Otherwise the medical screener must refer the case to the Preliminary Proceedings Committee. The appellant’s case must have been so referred.
12. The Preliminary Proceedings Committee, after considering the case, may refer the case to the PCC for inquiry, or refer the case to the Health Committee for inquiry, or decide to refer the case to neither committee (see rule 11(1)). In this way trivial convictions that do not warrant any inquiry proceedings, whether by the PCC or by the Health Committee, are weeded out. As to a reference to the Health Committee, rule 11(4) says that:

“When referring a case to the Health Committee the Committee [ie the Preliminary Proceedings Committee] shall indicate the nature of the alleged condition by reason of which it appears to them that the fitness to practise of the practitioner may be seriously impaired.”

13. Part V of the Rules relates to hearings before the PCC. In a case based on a criminal conviction the PCC must first satisfy itself that the fact of the conviction has been proved, or admitted. Then evidence as to the circumstances leading up to the conviction and as to the character and previous history of the practitioner and mitigation evidence may be adduced (see rules 25 and 26). This was duly done in the present case.
14. Unless the PCC decide to postpone their decision as to how to deal with the case or decide that no direction is called for, rule 31 requires them to make a direction of one or other of the three possible types specified in section 36(1) of the Act, i.e. suspension, conditions or erasure.
15. However, under rule 51 the PCC retains the power, exercisable at any time in the course of the inquiry, to refer the case to the Health Committee if it appears to the PCC that “a practitioner’s fitness to practise may be seriously impaired by reason of his physical or mental condition”.
16. The referring of the case to the Health Committee may, therefore, be done by the medical screener, the Preliminary Proceedings Committee or the PCC. The power to refer arises where the opinion has been formed that the practitioner’s fitness to practise may be seriously impaired by reason of a physical or mental condition. The forming of the requisite decision does not, however, require the case to be referred to the Health Committee. The power to refer is a discretionary one. Mr Jenkins pointed out that no guidance is given in the Rules, or in the Act, as to the criteria which should govern the exercise of the power. That is so. It is not, however, hard to conclude that in considering whether or not to exercise the power, the committee in question, or the medical screener, as the case may be, should take into account all the circumstances of the case including the scope of the powers available to the Health Committee.
17. The Health Committee’s powers are set out in section 37 of the Act. They are probably set out also in the Health Committee (Procedure) Rules but their Lordships were not referred to those Rules. It appears from section 37 that the Health Committee has the same powers as the PCC to direct suspension of registration or to direct that registration be conditional. But, unlike the PCC, the Health Committee has no power to direct erasure, whether as an initial direction or as a direction consequent upon the practitioner’s failure to comply with conditions. In the event of a failure to comply with conditions, the Health Committee can do no more than direct a suspension of registration for a period not exceeding twelve months (section 37(2)), with the possibility of a further twelve month suspension, or an indefinite suspension, to follow (section 37(3) and (3A)).
18. Accordingly, in their Lordships’ view, if the case is one in which erasure is a serious possibility, neither the medical screener nor the Preliminary Proceedings Committee should refer the case to the Health Committee notwithstanding that it may be one where the fitness to practise of the practitioner in question appears to be seriously impaired by reason of his or her physical or mental condition.
19. As to the PCC, the question whether the PCC should exercise its rule 51 power to refer the case to the Health Committee should be considered in conjunction with the question whether the case is or may be one which calls for a direction of erasure. The PCC should not, in their Lordships’ view, refer a case to the Health Committee unless and until satisfied that a direction of erasure would not be the right direction to make. And once the PCC has decided that a direction of erasure is the right direction to make, the question whether the case should be referred to the Health Committee has received its answer.
20. It follows that in the present case the first and main question is whether the direction of erasure was justified. If it was, there is nothing left in the submission that the PCC should have referred the case to the Health Committee.
21. Under rule 31, the PCC should not impose a direction of erasure unless they have concluded that it would not be sufficient to deal with the case either by imposing conditions or by directing a suspension. Mr Jenkins submitted that suitable conditions imposed on the appellant would have negated the possibility that her continuance in practice would pose a risk to the public. He reminded the Board that the evidence before the Committee was that the appellant did not drink when she was to be on call and on the day of the accident had had no medical commitments. Moreover she had not, despite opportunities to do so, drunk alcohol since the day of the accident. The PCC, he submitted, had placed insufficient weight on the fact that the offences of which the appellant had been convicted bore no relation to her duties as a doctor.
22. On this last point their Lordships are unable to agree with counsel. The offences were attributable to the appellant’s alcoholism. There was evidence of two occasions in the past in which alcohol on the appellant’s breath had been noticeable at a time when she was engaged in medical duties. The occasions are referred to in the psychiatric report prepared for the General Medical Council by Dr Chiswick in November 2000 (see page 5). But, more important, the appellant was a general practitioner in a partnership of three doctors practising in rural Scotland. Her evidence that she would have refrained from drinking when on call can be accepted but emergency calls are inherently unforeseeable and the possibility that the appellant might have received such a call at a time when both her partners were unavailable does not seem to their Lordships a remote one. If she received such an emergency call at a time when she was the worse for drink, no one can know whether or not she would have accepted the call; no doubt she would like to say that she would not. But excessive alcohol may undermine the ability to make correct sensible decisions. The appellant’s decision to drive herself home on the day of the accident testifies to that. So the proposition that the fatal accident, which was brought about by the appellant’s alcohol dependency, had no implications for her duties as a doctor is not one that their Lordships can accept.
23. Mr Jenkins submitted that the PCC ought to have disposed of the case by imposing conditions involving supervision of the appellant by a psychiatrist and, after her release from prison, an assessment by the supervising psychiatrist of her fitness to practise. But, as Miss Vaughan Jones pointed out, the imposition of conditions while the appellant is in prison is hardly practicable. Conditions are intended to control the conduct of a practitioner who remains for the time being in practice. His or her registration is not suspended. The appellant, while in prison, cannot practise – although it is suggested that she could prescribe.
24. The impracticability of conditions while the appellant is in prison is not, however, the main point. Directions given by the PCC under rule 31, pursuant to the power conferred by section 36(1) of the Act, do not have any punitive purpose. Their purpose is threefold, namely, the protection of the public, the maintenance of public confidence in the medical profession and the maintenance of proper standards of behaviour by medical practitioners (see Garfoot v General Medical Council [2002] UKPC 35 at para 15).
25. Accordingly it is proper, in their Lordships’ opinion, for the PCC, when deciding in a conviction case on the appropriate direction to give, to have regard to the nature and gravity of the criminal offence in question. The extent to which the fact that the offence has been committed by a practising doctor is likely to bring the profession into disrepute or to undermine public confidence in the profession is a proper matter for the PCC to take into account. It is a matter the weight of which it is primarily for them to judge (see Dad v General Dental Council [2000] 1 WLR 1538 per Lord Hope of Craighead at p 1542).
26. Their Lordships have perused with care the transcript of the proceedings before the PCC. It is apparent that the PCC gave proper consideration to the impressive testimonials to the appellant that were placed before it. No substantial criticism has been directed at the advice given to the PCC by the legal assessor (see p 16 of the transcript). Mr Jenkins has submitted that it appears from the transcript that the PCC were confused about their role and about the distinction between proceedings based on an allegation of serious professional misconduct and proceedings based upon a criminal conviction: per the chairman “[The PCC] understands that a criminal conviction amounts to serious professional misconduct …” (p 17 of the transcript). But this remark was made before Mr Jenkins had given a clear and accurate explanation of the distinction (page 19 of the transcript) and their Lordships do not see any reason to doubt that the explanation cleared up any prior confusion. In giving the reasons for the PCC’s decision not to refer the case to the Health Committee the chairman said that:

“… the committee, having considered the serious nature of this criminal conviction, decided that in the public interest, this case must be treated as one of conduct.”

27. Their Lordships think, with respect, that the reason could have been better expressed but it is clear enough that it was the gravity of the appellant’s conduct in committing the offences that the chairman was referring to. He was, for the reasons already expressed, right to treat that as justifying the refusal to refer the case to the Health Committee.
28. In announcing the PCC’s decision that the case required a direction of erasure to be given, the chairman referred again to the gravity of the offence and made clear that the PCC did not regard conditions as appropriate or suspension as sufficient. He described erasure as being “proportional to the nature and gravity of the offence”. In their Lordships’ opinion these conclusions were well open to the PCC. No misdirection or error is apparent. The appeal should, therefore, be dismissed with costs.