The Judicial Committee of the Privy Council Decisions

 


Bhadra v. General Medical Council (GMC) [2002] UKPC 55 (22 October 2002)

ADVANCE COPY

Privy Council Appeal No. 12 of 2001

Dr. Tushar Kanti Bhadra Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL UPON A PETITION TO

DISMISS AN APPEAL FOR NON-PROSECUTION, OF THE

17th July 2002, Delivered the 22nd October 2002

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Present at the hearing:-

Lord Hope of Craighead

Sir Denis Henry

Sir Philip Otton

[Delivered by Lord Hope of Craighead]

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1. This is a petition to dismiss an appeal by Dr Tushar Kanti Bhadra (“the appellant”) from a decision of the Professional Conduct Committee for non-prosecution of the appeal. The petition is at the instance of the General Medical Council (“the Council”), the respondent to the appeal. At the end of the hearing on 17 July 2002 their Lordships indicated that, for reasons to be given later, they would humbly advise Her Majesty that the petition should be allowed and that the appeal should be dismissed. These are the reasons for their advice.
2. The following history provides the background to this appeal. In July 1998 the appellant was found guilty of serious professional misconduct by the Professional Conduct Committee. The Committee found that, while he was employed as a staff grade locum doctor in the accident and emergency department of Northampton General Hospital between 6 and 10 January 1997, he had on more than one occasion neglected or declined to examine patients or provide treatment, that in consequence patients were put at risk and that his medical notes were seriously below the standard expected of a registered medical practitioner. His name was directed to be suspended from the medical register for a period of twelve months under section 36(1)(ii) of the Medical Act 1983. He appealed against this decision to the Privy Council, but on 10 February 1999 his appeal was dismissed.
3. On 31 January 2000 the Professional Conduct Committee, having resumed consideration of the case, made a direction under section 36(3)(c) of the 1983 Act that the appellant’s registration was to be conditional for a period of twelve months. The effect of the conditions was to restrict his practice to employment at SHO level in NHS Accident and Emergency Departments under the supervision of a consultant or specialist registrar. On 29 January 2001 the Committee, having again resumed consideration of his case, made a direction under section 36(4) that his current period of conditional registration should be extended for a further period of twelve months and that the conditions attached to his registration should be varied. The effect of the variation was to restrict his practice to employment at SHO level in NHS non-acute surgical specialties which he was to identify and subsequently agree with his Postgraduate Dean. The appellant was notified of this decision by letter dated 30 January 2001. On 23 February 2001 he presented a petition of appeal to the Privy Council asking that the decision of 29 January 2001 that the conditions attached to his registration be varied be set aside.
4. The Council’s solicitors then proceeded to take the steps prescribed by rules 4 and 5 of the Judicial Committee (Medical Rules) Order 1980 (SI 1980/873). On 15 March 2001 they lodged in the Registry an authenticated record of the proceeding before the Professional Conduct Committee together with an authenticated copy of the documents before the Committee and sent copies of them to the appellant’s solicitors. It was then appreciated that some documents had been omitted from this bundle. On 26 March 2001 they lodged a new authenticated bundle of documents and sent copies of this bundle to the appellant’s solicitors. On 12 April 2001 they lodged the Council’s case in the Registry and notified the appellant’s solicitors that they had done so. They asked them to effect an exchange of cases within the next few days in terms of rule 6.
5. On 16 August 2001 the appellant’s solicitors lodged with the Registry a petition which had been signed by both sides for the withdrawal of the appeal. The Registrar listed this petition for hearing as a consent petition on 2 October 2001. A few days before that hearing took place however the appellant wrote to the Registrar saying that the petition had been prepared and lodged without his consent and that he did not want his appeal to be withdrawn. On 1 October 2001 his petition for the withdrawal of the appeal was removed from the list of business for hearing on 2 October 2001. The initiative now lay with the appellant to prosecute his appeal, but he failed to take any steps thereafter to do so. By 17 May 2002 when the Council’s petition for its dismissal for non-prosecution was lodged, in breach of rule 5 of the Judicial Committee (Medical Rules) Order 1980, he had still not lodged his case in the Registry. The position was unchanged in this respect when the petition for dismissal came before the Board for hearing on 17 July 2002.
6. The appellant was represented at the hearing on 17 July 2002 by Mr John Beggs, who had only recently been instructed. He said that the varied conditions which had been imposed on the appellant had proved to be unworkable, as there were very few SHO posts available in an NHS non-acute surgical specialty. On 19 April 2001 the Dean Director of Postgraduate Medical and Dental Education had advised that there was no realistic possibility of the appellant obtaining a post as an SHO in a surgical specialty where he would not be expected to do acute work and that the only post that he was realistically likely to achieve was a locum or non-training grade post. The appellant’s advisers took the view that it would be appropriate in view of this advice for the matter to be remitted to the Professional Conduct Committee for the question of conditions to be reconsidered. Arrangements were made at their request for the case to be listed by the Committee for a third resumed hearing. But the appellant had decided not to accept this advice, and he was now seeking permission to pursue his appeal.
7. Counsel said that he was not yet in a position to lodge a case on the appellant’s behalf setting out his grounds of appeal. But he provided the Board with a note of the appellant’s intended grounds in order to show that the appellant had grounds of appeal which were of potential substance.
8. The arguments which are summarised in this note are not confined to a submission that the varied conditions which were imposed at the resumed hearing on 29 January 2001 are unworkable. It is suggested that the assessors and the Committee failed to consider a portfolio of the appellant’s previous good clinical practice and that their assessment of his case was flawed in several material particulars. It is also suggested that the original finding that the appellant was guilty of serious professional misconduct was erroneous and based on material procedural irregularities and that he had been treated both by the assessors and by the Committee in a fashion that was racially discriminatory.
9. On the face of it the Council’s application that the appeal should be dismissed is quite straightforward. There is no doubt that the Judicial Committee has power under its inherent jurisdiction to dismiss an appeal for non-prosecution. The Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 (SI 1982/1676), which was made in the exercise of the powers conferred by the Judicial Committee Act 1833, provides in rule 36 for the dismissal of an appeal for non-prosecution where an appellant who has lodged his petition of appeal fails thereafter to prosecute his appeal with due diligence. No such steps may be taken before the expiration of one year from the arrival of the record in the Registry. Section 40(6) of the Medical Act 1983 provides that the 1833 Act shall apply in relation to the Professional Conduct Committee as it applies in relation to any court from which an appeal lies to Her Majesty in Council. The general procedural rules are disapplied by rule 15 of the Judicial Committee (Medical Rules) Order 1980, with only a few specified exceptions which do not include what is now rule 36 of the 1982 Order. But rule 10 of the 1980 Order provides:

“If the appellant does not lodge his case within the period prescribed by rule 5, or within such further period as may be allowed by the Registrar, the Council may lodge in the Registry a Petition to Her Majesty in Council praying that the appeal be dismissed for non-prosecution.”

10. Well over a year has now passed since the authenticated record and the authenticated bundle of documents were lodged by the respondent in March 2001. The onus lies on an appellant who has failed to prosecute his appeal with due diligence for such a long period to explain his default and to show cause why his appeal should not be dismissed. The information which was provided by Mr Beggs falls well short of providing a sufficient explanation for the delay. The appellant was advised that the best way of dealing with his argument that the varied conditions were unworkable was to ask the Professional Conduct Committee to reconsider the conditions in the light of the evidence. He was entitled to reject that advice and to ask for the application for the petition for the withdrawal of his appeal to be withdrawn. What he was not entitled to do was to remain inactive. No explanation or excuse has been offered for his failure to take any steps to prosecute his appeal after he requested the withdrawal of that petition.
11. The Board might have been prepared to allow the appellant’s appeal to proceed if it had been persuaded that the failure was due to a mistake, oversight or some other excusable cause, or that for some other reason the appellant would suffer an injustice if the appeal were to be dismissed. That is not the position in this case. It has not been suggested that there was any mistake or oversight. Prominent among the grounds set out in Mr Begg’s note are challenges to the original decision of the Professional Conduct Committee that he was guilty of serious professional misconduct. But his appeal to the Privy Council against that decision has already been disposed of. So it is no longer open to him to challenge that decision on these grounds. The only argument which remains is that the varied conditions are unworkable. But this is a matter which is best dealt with at a resumed hearing by the Professional Conduct Committee in the light of the evidence.
12. There is however one further point that needs to be considered. Miss Rosalind Foster for the Council said that it was a matter of particular concern to it that the consequence of the dismissal of the appeal for want of prosecution would not result in the appellant’s ability to return to unrestricted practice. As she put it, there had to be a direction in place that his registration was subject to conditions. There were sound reasons in the public interest why that should be so. It would not be satisfactory if a medical practitioner were to be able to escape the consequences of such a direction by taking it to appeal and then delaying or manipulating the appeal process. This raises a question of interpretation as to the effect of paragraphs 10 and 11 of Schedule 4 to the Medical Act 1983 in a case where an appeal is dismissed for want of prosecution.
13. Paragraph 10(1)(b) of Schedule 4 provides inter alia that a variation of the conditions imposed by a direction for conditional registration given by a Professional Conduct Committee under section 36 of the Act shall take effect, where an appeal is brought under section 40 but is withdrawn or dismissed for want of prosecution, “on the withdrawal or dismissal of the appeal.” Thus far there is no difficulty. The variation of the conditions originally imposed on the appellant’s registration which was directed by the Committee at the resumed hearing on 29 January 2001 will come into effect as soon as the order is made for the dismissal of the appeal. The problem arises because of the effect of the delay on the direction that the appellant’s registration was to be subject to the varied conditions for a period of twelve months. Well over twelve months have now passed since that direction was given. The question is, what is the date as from which that period is to be treated as having started to run?
14. Paragraphs 11(3) and (4) of Schedule 4, as amended by section 4 of and paragraphs 1 and 25 of the Schedule to the Medical (Professional Performance) Act 1995, provide as follows:

“(3) If, while a person’s registration is subject to conditions imposed under section 36, 36A or 37 of this Act, a direction is given under subsection (2) or (4) of section 36 or 37 or subsection (2) or (6) of section 36A, the conditions attached to his registration shall continue to attach to it throughout any period which may intervene between the time when, but for this subparagraph, his registration would cease to be conditional and the time when the direction takes effect in accordance with paragraph 10 above or an appeal against it under section 40 of this Act is (otherwise than by the dismissal of the appeal) determined.

(4) If, on the determination of an appeal under section 40 of this Act, a direction extending a current period of conditional registration for a further period takes effect after the time when, but for sub-paragraph (3) above, the current period of conditional registration would have ended, that further period shall be treated as having started to run from that time.”

15. The effect of paragraph 11(3) of the Schedule is clear. The directions which were given by the Professional Conduct Committee on 29 January 2001 did two things. They varied the conditions attached to the appellant’s registration, and they extended the period of his conditional registration for a further period of twelve months. These directions were given under section 36(4) of the 1983 Act. The effect of the appeal under section 40 was that the conditions which were originally imposed on the appellant’s registration on 30 January 2000 for a period of twelve months, and which were due to expire at the end of that period, remained in force. They will continue to remain in force until the appeal is dismissed for want of prosecution. The question as to the date as from which the period of twelve months during which the appellant’s registration is to be subject to the varied conditions is to be treated as having started to run depends on the application to this case of paragraph 11(4).
16. Paragraph 11(4) gives rise to two problems. The first is that it refers only to a direction extending the current period of registration. It does not mention a direction varying the conditions imposed by the direction for conditional registration. A variation of the conditions may be accompanied by a direction that the current period of registration be extended or it may not. Rule 37(2) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (SI 1988/2255) provides that the Committee may resume consideration of a case at an earlier meeting or date than that originally specified. In such a situation the Committee may decide to vary the conditions without extending the period. In that case the problem as to the starting date which paragraph 11(4) seeks to address will not arise. In the present case the Committee decided to extend the period of conditional registration as well as vary the conditions. In that situation, as the decision has been taken to appeal, the starting date for the running of the further period is that which paragraph 11(4) has identified.
17. The second problem relates to that starting date. Read literally, paragraph 11(4) provides that the time from which the further period is to be treated as having started to run is the time when the current period of conditional registration would have ended “but for sub-paragraph (3) above”: see also paragraph 11(2), which uses the same formula where there was a direction extending a current period of suspension for a further period. On this reading, the starting date would appear to be the time when the current period would have ended had there been no appeal. But that reading would not be consistent with the purpose of the provision, which is to adjust the timetable in the light of the appeal. If paragraph 11(4) is read together with paragraph 11(3), it can be seen that the scheme of the Act is to preserve the original conditional registration until the appeal has been determined. It would make no sense for two periods of conditional registration to be treated as running at the same time. So the effect of paragraph 11(4), when it is read in a way that gives effect to its purpose, is that the direction extending the period of conditional registration is not to be treated as having started to run until the appeal has been determined. That is the date when the current conditions will cease to attach to the registration and the new conditions will take effect for the extended period.
18. The consequence of the view which their Lordships take of these provisions may be summarised in this way. Section 36(4) of the 1983 Act provides that, where the Professional Conduct Committee have given a direction for conditional registration, they shall not extend any period of conditional registration under that section for more than twelve months at a time. But where the registered person exercises his right of appeal under section 40 an adjustment is made to the timetable. The effect of the appeal is that the conditions which were previously attached to his registration continue to attach to it until the direction that his registration is to be conditional for an extended period takes effect under paragraph 10 of Schedule 4 or the appeal is determined otherwise than by its being dismissed. If, as in this case, the appeal is determined by the dismissal of the appeal for want of prosecution, the extended period begins to run from the date when the direction takes effect on the determination of the appeal and not from any earlier date.
19. For these reasons their Lordships were of the opinion that the appeal ought to be dismissed for want of prosecution. The appellant must pay the respondent’s costs before the Board of both the petition and the appeal.