The Judicial Committee of the Privy Council Decisions

 


Sreenath v. General Medical Council (GMC) [2002] UKPC 56 (23 October 2002)

ADVANCE COPY

Privy Council Appeal No. 26 of 2002

Dr. Sampige Nanjundiah Sreenath 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, OF THE

3rd October 2002, Delivered the 23rd October 2002

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Present at the hearing:-

Lord Steyn

Lord Millett

Mr. Justice Gault

[Delivered by Lord Millett]

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1. On 3rd October 2002 their Lordships announced that they would humbly advise Her Majesty that Dr Sreenath's appeal ought to be dismissed. They said that they would give their reasons later. They now do so.
2. Dr Sreenath appeals from a direction given by the Professional Conduct Committee of the General Medical Council on 15th March 2002 under section 36 of the Medical Act 1983 as amended (“the Act”) that his name be erased from the register. The direction followed the Committee's refusal to accede to an application made on Dr Sreenath's behalf that his fitness to practise should be referred to the Health Committee; or alternatively that the inquiry should be adjourned to allow him to obtain definitive medical evidence of his mental condition before proceeding further. The appeal is effectively an appeal from that refusal.
3. Dr Sreenath was charged with serious professional misconduct by behaving inappropriately and indecently towards two of his female patients on two separate occasions while acting as a locum general practitioner. He was also charged with having committed breaches of conditions imposed on his registration which had been imposed by the Interim Orders Committee.
4. The Professional Conduct Committee found the charges relating to Dr Sreenath's conduct towards his patients proved. His counsel then sought and the Committee granted a short adjournment to enable him to be examined by a consultant psychiatrist. The purpose of the adjournment was to enable evidence to be obtained to determine Dr Sreenath's current psychiatric condition and in particular whether he was fit to give instructions to those representing him on the issue of penalty. It was not suggested that the evidence would have any bearing on his mental condition at the time of the offences.
5. During the period of adjournment Dr Sreenath was seen by Dr Campbell, a consultant psychiatrist. In the course of his examination Dr Sreenath volunteered the information that in 1995 he had attempted suicide by carbon monoxide poisoning. He had not previously disclosed this fact to those representing him.
6. At the resumed hearing his counsel placed before the Professional Conduct Committee a written report from Dr Campbell. This concluded (i) that Dr Sreenath was suffering from an acute anxiety state or acute stress reaction which with the benefit of appropriate medication was likely to have subsided sufficiently by the time of the resumed hearing to enable him to give proper instructions for the conduct of his case; (ii) that he was not suffering from any form of major mental illness, clinical depression or psychosis; but (iii) that it was possible that he might be suffering from organic brain damage in the form of dysexecutive disorder syndrome affecting his understanding and judgment.
7. Dr Campbell amplified his Report in oral evidence given in camera. He made it clear that his was only a potential diagnosis. He was not in a position to make a definitive diagnosis one way or the other. He explained that dysexecutive disorder syndrome was an organic personality change resulting from significant brain insult. Since the only history of brain insult was the suicide attempt in 1995, he took that to be the likely cause. In order to confirm his diagnosis one way or the other, it would be necessary to undertake a battery of neuro-psychological tests matched with a much more detailed history and probably brain imaging.
8. In the light of Dr Campbell's evidence, counsel for Dr Sreenath applied for the case to be transferred forthwith to the Health Committee; or alternatively for the hearing to be adjourned to enable further psychiatric evidence to be obtained by way of confirmation or refutation of Dr Campbell's report.
9. The Professional Conduct Committee refused the application and proceeded with the inquiry in public. Dr Sreenath then admitted the alleged breaches of the order for interim conditional registration and his counsel addressed the Committee in mitigation. He formally submitted a bundle of testimonials (of which the Committee was already aware) from patients who testified to the excellence of Dr Sreenath's care.
10. The Committee found Dr Sreenath guilty of serious professional misconduct and, taking into account the admitted breaches of the order for interim conditional registration, directed that his name be erased from the register. It also made an order under section 38 of the Act suspending his registration with immediate effect.
11. Rule 51(1) of The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 (SI 1988 No 2255) provides that, where in the course of an inquiry it appears to the Professional Conduct Committee that a practitioner's fitness to practise may be seriously impaired by reason of his physical or mental condition, it may refer that question to the Health Committee for determination. If following such a reference the Health Committee certifies its opinion that the practitioner's fitness to practise is not seriously impaired by reason of his physical or mental condition, the Professional Conduct Committee is required to resume its inquiry and dispose of it: (rule 51(3)). If on the other hand the Health Committee certifies its opinion that the practitioner's fitness to practise is seriously impaired by reason of his physical or mental condition, the Professional Conduct Committee ceases to exercise its functions in relation to the case: (rule 51(4)).
12. If the Health Committee judges the practitioner's fitness to practise to be seriously impaired by reason of his physical or mental condition, it may direct that his registration be conditional on his compliance in the first instance for a period not exceeding three years with such requirements as the Committee may think fit to impose for the protection of members of the public or in his interests. If the Committee considers that this course would be insufficient it may suspend the practitioner's registration, if necessary with immediate effect, in the first instance for a period not exceeding 12 months. In either case the Committee is obliged to hold a resumed hearing before the expiration of the period of conditional registration or suspension. At the resumed hearing the Committee may extend the period of conditional registration or suspension, with power in certain circumstances to direct that the period of suspension be extended indefinitely. Where the practitioner's registration has been suspended indefinitely, provision is made for the Committee to terminate the suspension.
13. Following the conclusion of the inquiry Dr Sreenath obtained reports from Professor Bradshaw, a neuropsychologist, and Professor Szabadi, a psychiatrist. These showed that Dr Sreenath's account of his attempted suicide in 1995 was corroborated by contemporary medical notes; and that he was currently suffering from (i) acquired cognitive deficits consistent with dysexecutive syndrome attributable either to cerebrovascular disease or to cerebral hypoxia at the time of the attempted suicide; (ii) a significantly reduced ability to cope with situations of stress and anxiety; and (iii) a bipolar affective disorder associated with disinhibition and socially inappropriate behaviour. The consultants were of opinion that Dr Sreenath's mental condition affected his ability to practise effectively and may have contributed to his conduct at the time of the offences in question.
14. At the hearing of Dr Sreenath's appeal his counsel placed these reports before the Board and asked their Lordships to quash the decision of the Professional Conduct Committee to erase his name from the register and direct either that the case be transferred to the Health Committee or that the appropriate penalty be reconsidered by the Professional Conduct Committee. He accepted that the Committee was entitled to take a serious view of Dr Sreenath's conduct and did not challenge the Committee's conclusion that it amounted to serious professional misconduct which justified erasure. He also acknowledged that the Committee could not properly have transferred the case forthwith to the Health Committee as he had invited it to do, since there was no evidence before it to suggest that Dr Sreenath's fitness to practise might be seriously impaired by reason of his physical or mental condition. Dr Campbell's evidence did not go so far; in particular it gave no indication how, if at all, Dr Sreenath's mental condition affected his fitness to practise. Moreover, the Committee was aware of the testimonials from which it appeared that he had in fact been practising satisfactorily.
15. Accordingly counsel confined his challenge to the refusal of the Professional Conduct Committee to adjourn the hearing. He acknowledged that the Committee had a discretion whether or not to grant an adjournment, and that it was not a discretion which could be exercised only in one way. But he subjected the reasons given by the Committee for refusing an adjournment to strong criticism, and submitted that its decision was unsupportable. He conceded that the propriety of the Committee's decision must be determined by reference to the material which was before it at the time and could not be challenged by reference to the psychiatric reports which had been obtained afterwards. But those reports would be material on which their Lordships could exercise their own discretion if they considered that the Committee had exercised its discretion on a wrong basis. The later reports, he said, were the kind of material which could have been made available to the Committee had the adjournment been granted as it should have been, and they would have justified a transfer to the Health Committee.
16. The question which the Professional Conduct Committee had to consider was whether the material sought to be obtained by the adjournment would be relevant to any question which it had to decide. Counsel submitted that it would be relevant in two respects: (i) it would provide the Committee with fuller and more complete evidence of Dr Sreenath's current mental condition without which it could not make an informed decision whether to transfer the case to the Health Committee; and (ii) it would be relevant to the issues of serious professional misconduct and penalty. Their Lordships cannot agree.
17. The functions of the Professional Conduct Committee and the Health Committee, though complementary, are distinct. The Professional Conduct Committee is concerned to maintain professional standards of integrity and competence and the reputation of the medical profession. Its function is disciplinary. If it finds that a practitioner has been guilty of serious professional misconduct, it must consider whether the safety of the public and the reputation of the profession require that his name be erased from the register so that he cannot carry on a medical practice even if medically fit to do so; or whether some lesser penalty such as conditional registration or suspension for a limited period would be sufficient. The functions of the Health Committee are not disciplinary. It is concerned to protect the public (and the practitioner himself) from the dangers of a practitioner being allowed to carry on practice while he is medically unfit to do so, whether or not he has committed a disciplinary offence. Its powers are limited to enable it to achieve this purpose. It cannot order the practitioner's name to be erased from the register. The most it can do in an appropriate case is to order indefinite suspension, and such an order is reviewable at any time. If the Health Committee is satisfied that the practitioner has recovered sufficiently to be allowed to resume practice, it will terminate his suspension.
18. But these safeguards are unnecessary if the practitioner's name is to be erased from the register so that he cannot practise even if medically fit to do so. They are necessary only where his name is not to be erased from the register, either because the Professional Conduct Committee has found the charges to be unfounded or because it considers that some lesser penalty is appropriate. That is why in Crabbie v General Medical Council (unreported) Privy Council Appeal No 7 of 2002, 23rd September 2002; their Lordships held that the Professional Conduct Committee should not refer a case to the Health Committee unless it was satisfied that an order directing the erasure of the practitioner's name from the register was not appropriate. In giving the judgment of the Board Lord Scott of Foscote said:

“… the question whether the [Professional Conduct Committee] 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 [Professional Conduct Committee] 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 [Professional Conduct Committee] 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.”

19. The first ground of challenge therefore fails. The possibility of erasure could not be excluded at the time of the application; and it is still open today if the Professional Conduct Committee is to be directed to reconsider the question of penalty.
20. The second ground is essentially that the material was relevant to issues of mitigation. Its relevance to these issues was a matter for the Professional Conduct Committee. Their Lordships would endorse the Committee's observation that inappropriate and indecent behaviour by a doctor towards a patient is always a matter of grave concern, since it is an abuse of the doctor's position and offends against the rights of the patient. It is conduct which reflects adversely on the doctor concerned and damages the reputation of the medical profession, as well as undermining the trust which members of the public should have in the medical profession. In their Lordships' opinion the Committee was entitled to take the view that Dr Sreenath's conduct amounted to serious professional misconduct and that the protection of the public required the erasure of his name from the register whether or not he was suffering from a psychiatric disorder at the relevant time. It follows that it was entitled to take the view that further evidence corroborative of Dr Campbell's report would not be of assistance and to refuse an adjournment sought for the purpose of obtaining such evidence.
21. The appeal should accordingly be dismissed. The appellant must pay the costs of the appeal.