The Judicial Committee of the Privy Council Decisions

Hall v. General Medical Council (GMC) [2002] UKPC 61 (14 November 2002)

ADVANCE COPY

Privy Council Appeal No. 24 of 2002

Dr. Anthony Peter Hall Appellant

v.

The General Medical Council Respondent

FROM

THE HEALTH COMMITTEE OF THE

GENERAL MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 14th November 2002

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Present at the hearing:-

Lord Millett

The Rt. Hon. Justice Gault

Sir Philip Otton

[Delivered by The Rt. Hon. Justice Gault]

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1. This is an appeal from a determination of the Health Committee of the General Medical Council directing that the suspension of the registration of the appellant as a medical practitioner remain in force indefinitely on the ground that his fitness to practise remained seriously impaired by reason of a bipolar affective disorder, current episode hypomanic (manic depression).
2. The determination the subject of this appeal was made on 21 February 2002 upon a review by the Health Committee under section 37(3A) of the Medical Act 1983. It followed an order for suspension made with effect from 18 March 2000 (the original order) against which the appellant did not appeal and a determination that he should remain suspended for a further twelve months from 18 March 2001 (the first review) which was the subject of an unsuccessful appeal to Her Majesty in Council. The judgment on that appeal (PC 25 of 2001) was delivered on 7 November 2001.
3. Under section 40(5) of the Act no appeal shall lie from a decision of the Health Committee made under section 37 "except on a question of law".
4. The background leading to the original order and the circumstances of the first review and the appeal from the determination on that review were set out in their Lordships' judgment delivered on 7 November 2001 and need not be repeated. The review with which their Lordships are now concerned was undertaken by the Health Committee in accordance with the indication given in the determination on the first review when the Chairman stated:

"Before the end of the further period of suspension of your registration the Committee will again meet to consider your case. A letter will be sent to you about the arrangements for the resumed hearing, and you will be invited to be medically examined before that hearing.

In the meantime, the Committee strongly urge you to place yourself under the medical supervision of a consultant psychiatrist, who would be asked to report to the Committee on your progress with your consent."

5. Prior to the hearing, by letter of 28 November 2001, the appellant was advised that the Health Committee would resume consideration of his fitness to practise at their meeting between 18 and 22 February 2002. He was asked whether he had placed himself under medical supervision as recommended by the Committee. He was also asked if he agreed to be examined by medical examiners chosen on behalf of the Health Committee by the Screener for Health and whether he wished to nominate a further medical practitioner to examine him.
6. From the documents placed before the Committee when they embarked upon the resumed hearing on 21 February it appears that the appellant did not immediately respond to the letter from the General Medical Council. Instead he wrote a series of similar letters to those medical practitioners who had provided reports at earlier stages of the proceedings challenging their conclusions in terms that led each of them to decline to examine him further when asked to do so by the General Medical Council. Dr Mann, the Screener, also declined to examine him as she considered that would be inconsistent with her position. As a result, there were not placed before the Health Committee any further reports of medical examinations of the appellant undertaken at the request of the General Medical Council. There were, however, letters submitted by the appellant from Dr Richard O'Flynn and Dr Pinto, both consultant psychiatrists. In addition there were testimonial letters supportive of the appellant from patients, neighbours and colleagues.
7. At the hearing the solicitor for the General Medical Council reviewed the background of the original orders and the first review. He went through the documentation before the Committee. He did not press for a finding that, in the circumstances, the appellant had refused to submit to medical examination and was content to have the Committee undertake the review on the material that was before them.
8. The appellant appeared before the Committee in person. He made submissions emphasising that he had tried to see all the psychiatrists. He maintained he was devoid of any of the recognised symptoms of manic-depression and had been mis-diagnosed by the psychiatrists who had previously reported to the Committee. He relied on the letter from Dr Richard O'Flynn recording his findings after an examination of the appellant on 18 December 2001 stating:

"At the time I could find no evidence of any abnormality in his mental state and could not establish the grounds on which a diagnosis of bi-polar disorder has been made.

I read the testimonials from a large number of grateful patients, colleagues and friends which in themselves seem to contain no evidence supporting the diagnosis either."

9. The appellant mentioned that Dr Pinto had found him well in June but did not then examine him. The appellant also referred to the testimonials he had provided.
10. He called two witnesses. The first was a patient who recounted experiences of members of his family over a period of years with medical advice and treatment from the appellant. He expressed the view that the appellant was a caring doctor, not manic or depressed. The second witness was the appellant's wife. She gave evidence of the appellant's professional and personal competence and rejected the contention that his judgment was impaired.
11. The appellant was questioned quite extensively by members of the Committee and the Medical Assessors.
12. After advice from the Legal Assessor, which has not been criticised, the Committee deliberated before announcing their determination. The Chair said:

"The Committee are disappointed that there are no up to date detailed medical reports. However, they do not make any finding that you have failed or refused to submit to medical examination.

The Committee were most concerned by the contents of your letters to the medical examiners, which they consider displayed very poor judgment and reflected your current mental state. They were also very concerned by your letters to the GMC, your responses to questions and your evidence regarding your prescribing whilst your registration was suspended.

In the light of all the evidence they have considered today, the Committee have judged that your fitness to practise remains seriously impaired by reason of a condition classified in the ICD-10 Classification of Disorders as F31.0 - bipolar affective disorder, current episode hypomanic.

The Committee do not consider that your condition is currently in remission. However, even if it were in remission they consider that your fitness to practise remains seriously impaired. In reaching this decision the Committee have had regard to Rule 24(2) of their procedure rules. That rule indicates that the Committee are entitled to regard as current serious impairment either the practitioner's current physical or mental condition, or a continuing and episodic condition, or a condition which, although currently in remission may be expected to cause recurrence of serious impairment.

The Committee have considered whether it would be sufficient to impose conditions on your registration. However, in view of your lack of insight and your unwillingness to accept treatment, the Committee are not satisfied that you would comply with conditions on your registration.

The Committee consider that until you accept the need for medical treatment there is no prospect of your condition improving. Therefore the Committee have concluded that they should direct that your registration be suspended indefinitely."

13. Before their Lordships the appellant presented an extensive submission orally and in writing. He addressed the Board throughout with the utmost courtesy. From the outset he made it clear that he was seeking to have their Lordships reverse the original order of the Health Committee, the decision of the Privy Council on the appeal from the first review and the determination of the Health Committee of 21 February 2002. He attempted to persuade their Lordships that he has been wrongly diagnosed as suffering from bipolar affective disorder and should never have had his registration suspended. He was told, repeatedly, that their Lordships could not revisit the earlier decisions and that the appeal was confined to the determination of 21 February 2002. He was not deterred however. In the result almost all of his submission was misdirected. It was only towards the end of his submissions that the appellant addressed the hearing on 21 February 2002. His points of criticism may be summarised as:

(a) that the address to the Committee by the solicitor representing the General Medical Council was biased, dishonest and one-sided;

(b) that he was prejudiced by the refusal of the psychiatrists who had originally examined him to see him again;

(c) that the evidence and testimonials he presented were ignored;

(d) that the report of Dr O'Flynn was ignored;

(e) that the criticism of his judgment exhibited in the content of letters to the medical examiners was unjustified and illegal;

(f) that no details were given for the conclusion that the poor judgment displayed in his letters reflected his current mental state.

14. Their Lordships have read the transcript of the address to the Committee by the solicitor representing the General Medical Council. It fairly summarises the background and the new material before the Committee. Understandably the solicitor left it to the appellant to refer in detail to testimonials and other material he was relying upon. The review of the correspondence with the medical examiners and the General Medical Council was reasonable and moderately expressed.
15. The Committee made no finding that the appellant had refused to be medically examined. It was open to them to take the view that the refusals by the psychiatrists to see the appellant were understandable given the content of the letters written to them by the appellant. These contained allegations of malicious defamation in their earlier reports and were couched in extravagant language. The position therefore was that they were obliged to consider the matter on such material as was available to them.
16. Their Lordships do not accept that the submissions and evidence presented by the appellant were ignored. The Health Committee in their determination expressly stated that they had been carefully considered. This was a resumed hearing at which the Committee also had before it extensive medical reports previously given. The new material with which they were presented was to be assessed with those. The report of Dr O'Flynn therefore was but one of a number of medical reports for consideration.
17. The Health Committee is an expert committee. It is assisted by Medical Assessors. On 21 February 2002 they were required to consider whether the appellant's fitness to practise remained seriously impaired. Like their Lordships, they were not required to review the original order.
18. Their Lordships are satisfied that the proceedings before the Committee were conducted fairly and that, on the material before them, the determination made was open to them. The reasons for their decision were entirely adequate. No error of law has been established and, accordingly, the appeal cannot succeed.
19. The appellant does not accept the decision under appeal nor the earlier decisions of which he complains. But his challenges to them, to the extent open to him, have been unsuccessful. Having considered the whole matter in the course of determining this appeal, their Lordships express their complete agreement with the Health Committee that the appellant's lack of insight into his condition and unwillingness to accept treatment are most unfortunate when there is repeatedly expressed medical opinion that with appropriate treatment his condition could be improved.
20. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed.