The Judicial Committee of the Privy Council Decisions

Rao v General Medical Council (GMC) [2002] UKPC 65 (9 December 2002)

ADVANCE COPY

Present at the hearing:-

Lord Millett

The Rt. Hon. Justice Gault

Sir Philip Otton

[Delivered by Sir Philip Otton]

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1. The appellant, Narasinga Mukunda Rao, appeals from a direction of the Professional Conduct Committee (PCC) of the respondent Council given on 22 February 2002 that the registration of the appellant should be conditional for a period of 18 months in consequence of the admission and proof of certain of the facts set out in the Notice of Inquiry and a determination that in relation to those facts he was guilty of serious professional misconduct.

Background

2. The appellant is a registered medical practitioner. After initially practising both as a General Practitioner and in hospital medicine in Bangalore he obtained full registration with the General Medical Council in 1977. He undertook various positions in the United Kingdom in hospital medicine and underwent GP training. He became the GP Principal in August 1990 at the Health Centre, Prince Charles Road, Wrexham, where he still practises. He also undertakes four sessions each week as a Clinical Assistant at Wrexham Maelor Hospital. In addition, he runs a shared-care scheme clinic in the Wrexham Community Drug and Alcohol Office.
3. On 29 December 1998 Dr Rao was working for the Wrexham General Practice Out of Hours Co-Operative. At about 22.30 he had a telephone conversation with a Mrs Pritchard, the estimated length of which was between two and five minutes and the substance of which formed the basis of the complaint against him.
4. Sheena and Colin Pritchard were married in 1996. In 1989 Colin Pritchard had suffered a serious back injury which prevented him from working. He was diagnosed with cervical spondulosis. His incapacity caused him severe depression. He was prescribed Diazepam and Dihydrocodeine. His depression worsened over the years and he was subsequently referred to a consultant psychiatrist. In September 1998 Mr Pritchard had a chest infection for which he was prescribed Amoxicillin and Prednisolone, a steroid. The drugs did not help and his condition worsened, particularly over the Christmas period. On 29 December Mr Pritchard appeared very drowsy. His wife felt that he looked very ill, his speech was slurred and his tongue was falling out of his mouth. He went to bed and when Mrs Pritchard checked on her husband at about 10.15 that evening she found him lying on his side in an awkward position, his lips and fingers were blue and his breathing was noisy. Mrs Pritchard telephoned the surgery. Because of the hour she was transferred to the Out-of-Hours service, speaking to a receptionist and then subsequently to the Appellant. That night Mr Pritchard died at his home in his sleep. He was 34 years old. An inquest found the cause of death to be respiratory depression and an accidental overdose of Diazapam and Dihydrocodeine.
5. The essence of the case against the appellant was that on the information given to him by Mrs Pritchard he failed to give adequate and appropriate advice and that he should have visited or arranged a GP visit or summoned an ambulance. The precise facts upon which the case rested are reflected in the particulars of the charge and the findings of the Committee.
6. The charge set out in the Notice of Inquiry and as amended at the outset of the hearing was as follows:-

"1. At the material time you were employed by the Wrexham General Practice Out of Hours Co-Operative.

Admitted

2.a. On the 29th December 1998 at about 22:30 hours Mrs Sheena Pritchard telephoned the Out of Hours Co-Operative.

Admitted

b. Mrs Pritchard spoke first to a receptionist who then put the call through to Dr Narasinga Rao.

Admitted

c. Mrs Pritchard explained that her husband, Mr Colin Pritchard, was a psychiatric patient and on medication.

Admitted

d. That Mr Pritchard's lips and fingers had turned blue.

Admitted

e. That Mr Pritchard's breathing was very rapid.

Found proved

f. That Mr Pritchard's breathing was very noisy.

Subsequently withdrawn

3.a. You failed to ask what all the drugs were which Mr Pritchard was taking.

Subsequently withdrawn

b. You failed to find out whether there were clinical signs indicating a drug overdose.

Admitted

c. You failed to ask whether this was the first time Mr Pritchard was cyanosed.

Admitted

d. You failed to enquire whether Mr Pritchard's state of health had deteriorated.

Admitted

4. Given the history provided to you by Mrs Pritchard, you should have arranged for Mr Pritchard's breathing to be assessed medically.

5. Your advice was inadequate and inappropriate in that you failed to put yourself into a position to make an accurate professional assessment of Mr Pritchard's condition;

And that in relation to the facts alleged you have been guilty of serious professional misconduct."

7. The appellant was ultimately found guilty of serious professional misconduct in relation to the facts admitted and proved against him. The Chairman announced the determination and direction of the Committee in the following terms:-

"Dr Rao would you please stand. On the evening of 29 December 1998 you were employed by the Wrexham General Practice Out of Hours Co-operative. At about 22:30 hours the receptionist passed on to you a telephone call from Mrs Sheena Pritchard. We have considered the differences between Mrs Pritchard's and your accounts of this call. We are satisfied so that we are sure that the generality of her account is accurate and, in particular that she was concerned about the health of her husband, Mr Colin Pritchard, and so expressed herself. Mrs Pritchard explained that her husband was a psychiatric patient and on medication, that his fingers and lips had turned blue and that his breathing was very rapid. Mrs Pritchard also gave you the names and dosages of all the medication that Mr Pritchard was taking at the time.

During the course of the telephone consultation with Mrs Pritchard you have admitted that you failed to find out if there were any clinical signs indicating a drug overdose, whether this was the first time Mr Pritchard was cyanosed and also whether the state of Mr Pritchard's health had deteriorated. You concluded that Mr Pritchard's condition was not serious and reassured Mrs Pritchard accordingly. Mr Pritchard subsequently died of respiratory depression and accidental drug overdose.

You now accept that, given the history that Mrs Pritchard provided, you should have arranged for Mr Pritchard's breathing to be assessed medically, that your advice was inadequate and that you failed to put yourself into a position to make an accurate professional assessment of Mr Pritchard's condition ...

The Committee have listened to the submissions of your counsel, the evidence of the witnesses called on your behalf and have noted the material submitted in mitigation. The Committee have heard that you are a caring, considerate, hard-working, respected general practitioner, that you have no previous history with the GMC and that you have worked as a clinical assistant to the satisfaction of the consultant responsible for the Accident and Emergency Department at Wrexham Maelor Hospital. The Committee have noted the support of colleagues who have travelled to give evidence on your behalf and have noted your own testimony and your expressions of regret regarding the events of 29 December 1998.

However, the Committee have also noted the testimony of the expert witness Dr Wright. He explained that cyanosis is a very serious clinical sign and that this description alone should have provoked either an immediate visit by a GP or a 999 ambulance being called for Mr Pritchard.

The Committee have also noted that you accept that cyanosis is a serious clinical sign yet have not been able to explain satisfactorily why you failed to take either of the appropriate steps.

In the light of Mrs Pritchard's testimony regarding your telephone consultation with her, which has been accepted, the Committee has concluded that you have made a fundamental error that is not compatible with good medical practice. In this case each of the facts proved is a cause for serious concern and the Committee are satisfied that taken together your treatment of Mr Pritchard fell far below the standards expected of a registered medical practitioner. The Committee have, therefore, found you guilty of serious professional misconduct.

The Committee have considered what action they should take. The Committee have a duty to consider carefully the protection of patients and the public interest, and to ensure that any sanction is appropriate and proportionate to the findings.

In view of this, the Committee have concluded that they must take action against your registration. The defects in your practice are such that a reprimand would be inappropriate. The Committee find that it is sufficient to impose conditions on your registration for a period of 18 months …"

The conditions were:-

"1. You shall undergo within six months an objective assessment by a GMC Performance Assessor of the standard of your professional performance with special reference to telephone consultations: the taking of a history, the formulation of an assessment and the subsequent management.

2. On the basis of this assessment and in the context of any telephone skills training programme recommended by the Performance Assessor, you shall work with a mentor, to be appointed by the local G.P. tutor, particularly regarding your ongoing use of telephone consultations.

3. You shall not undertake any unsupervised telephone triage at any G.P. co-operative or deputising service until your mentor in liaison with the Performance Assessor is satisfied that you are safe to do.

4. You shall notify all current and potential employers at the time of application, whether for voluntary or paid work which requires registration with this Council, of the conditions imposed on your registration by this Committee."

The Appeal

8. Mr Nicholas Peacock (who also appeared before the Committee), in an impressive submission to the Board, contended that the Committee and the sanction imposed left "a lingering sense of unease". He advanced two principal arguments:

(1) That the PCC was wrong to find the appellant guilty of serious professional misconduct, and to impose such excessive and inappropriate conditions.

(2) That the advice of the Legal Assessor was misleading as to what might constitute serious professional misconduct in this particular case.

9. In support of the first ground counsel pointed out that the appellant always admitted that he had (in effect) acted negligently. However, there is a real danger as a result of the finding in this case that, in any case where a doctor has acted negligently, the PCC is likely to make a finding of serious professional misconduct. Counsel for the General Medical Council had opened the case to the Committee as "an isolated incident" (as opposed to a course of conduct). There was no suggestion that the appellant had fallen below the professional standard expected of him on any previous occasion during a career spanning 25 years. Cases of serious professional misconduct against a doctor involving allegations of clinical mistreatment in respect of one patient on one occasion are rare. This was not a clear-cut but borderline case.
10. Ms Jane Sullivan on behalf of the respondent submitted that there was nothing in principle to prevent a single incident from amounting to serious professional misconduct. A serious error on one occasion can amount to professional misconduct which can be classified as serious. The PCC was best placed to decide whether the conduct complained of fell short of the standards expected of a reasonably competent practitioner and amounted to serious professional misconduct. In the light of the compelling evidence of Dr Wright, an experienced general practitioner, which the Committee accepted, the PCC were entitled to conclude that the appellant had made a fundamental error that was not compatible with good medical practice, that the appellant's treatment fell far below the standards expected of a registered medical practitioner and (accordingly) he was guilty of serious professional misconduct.
11. Their Lordships found this a difficult case to evaluate on its merits in the light of the evidence. On closer examination we became increasingly concerned about the direction of the Legal Assessor on what constituted serious professional misconduct. At the end of the evidence and before the PCC began their deliberations in private he said: (D2-18D):-

"It is in theory possible that a single free-standing event – and I stress 'free-standing' – could amount to serious professional misconduct, and it may well be that you will take that view, and you would certainly be entitled to, that if you are considering an event which takes place on one occasion, it is crucial to consider whether that event has separate elements to it, in which case the theoretical issue changes or may be seen to change … You would be entitled to say, whatever your decision about the generality of the conversation is, but the more so if you decide that Mrs Pritchard's evidence is to be preferred to Dr Rao's, that there are separate elements to this event. If you do so decide, then you do have a basis upon which you could then go on to determine – bearing in mind always the burden and standard of proof – that the event was one of serious professional misconduct."

12. Counsel submitted that the advice or direction of the Legal Assessor was misleading. It is not possible to categorise this case as anything other than a single isolated incident. It was (as he put it) "inappropriate, academic and divorced from reality" for the Legal Assessor to advise the Committee and for the PCC to find that there was a number of failings.
13. Ms Sullivan submitted that the advice was neither misleading nor incorrect in any material way because "it is in theory possible that a single free-standing event … could amount to serious professional misconduct". Nor was it artificial to say that the events of the 29th December were made up of separate elements because the charge itself alleged separate omissions on the appellant's part, albeit all arising on the same occasion.
14. In reaching their conclusion on this issue their Lordships start with the analysis of the role of the Legal Assessor considered by this Board in Libman v General Medical Council [1972] AC 217. Lord Hailsham of St Marylebone LC stated at 221B:-

"(4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee's decision. Where a criticism is made of the legal adviser's account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision."

They also take account of the observations of the Board in Preiss v General Dental Council [2001] 1 WLR 1926. Lord Cooke of Thorndon said at para. 28 on page 1936C:-

"It is settled that serious professional misconduct does not require moral turpitude. Gross professional negligence can fall within it. Something more is required than a degree of negligence enough to give rise to civil liability but not calling for the opprobrium that inevitably attaches to the disciplinary offence …".

and at paragraph 29:-

"That for every professional man whose career spans, as this appellant's has many years and many clients, there is likely to be at least one case in which for reasons good and bad everything goes wrong – and that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record."

15. There can be no doubt that the passage complained of was of considerable significance for the PCC when they went into camera to carry out their deliberations. The case had been presented to the Committee on the basis that the conduct complained of arose out of one single incident. The advice was not consonant with that proposition. The Legal Assessor acknowledged that the PCC was "considering an event which takes place on one occasion, it is crucial to consider whether that event has separate elements to it", so far, no exception can be taken. He then embellished this proposition thus:-

"… in which case the theoretical issue changes or may be seen to change … You would be entitled to say … that there are separate elements to this event. If you do so decide, then you do have a basis upon which you could then go on to determine … that the event was one of serious professional misconduct."

It is not clear to their Lordships what the Legal Assessor was seeking to propound by this elaboration; whatever it was it could and should have been more felicitously expressed. As it stands, taken as a whole and in context the passage complained of was ambiguous and misleading. It gives the impression that it was open to the PCC to conclude that the separate elements (as particularised in the charge, if proved) could each on their own or taken together amount to serious professional misconduct. This impression may well have been conveyed to the PCC and formed the basis upon which they actually decided the case. In a critical passage when expressing their conclusions as to what action they should take against the appellant's registration the Chairman said:-

"The defects in your practice are such that -"

There was in reality, and throughout the hearing only one single instance of clinical failure and it was never suggested that there was more than one. The expression "defects in your practice" was neither appropriate nor warranted. It gives the impression that it was open to the PCC to conclude that because the incident could be seen as comprising separate elements it could amount to serious professional misconduct even though, looked at as a single event, it would not. Moreover the PCC's conclusion was reflected in the conditions they imposed which suggest that his manner in conducting triages on the telephone had been defective on other occasions.

16. Accordingly their Lordships have reached the conclusion that there was or might have been a direct connection between the inappropriate direction and the findings of the committee. They are satisfied that the passage complained of amounted to a material misdirection and that it was of sufficient significance to invalidate the decision.
17. The question now remains whether, if the correct advice had been given on the issue of what contributed or was capable of constituting serious professional misconduct in the particular circumstances of this case, the outcome would have been the same? Their Lordships are unable so to conclude. The appropriate advice would have excluded the elaboration referred to and included a reference to the observations cited above in the case of Preiss. For the purposes of the outcome of this appeal, their Lordships proceed on the basis that this was a borderline case of serious professional misconduct. It was based on a single incident. There was undoubted negligence but something more was required to constitute serious professional misconduct and to attach the stigma of such a finding to a doctor of some 25 years standing with an hitherto unblemished career. Their Lordships are left with a profound sense of unease and are far from satisfied that if properly advised the PCC would inevitably have arrived at the same conclusion. Moreover, if the finding of serious professional misconduct had been made on the basis of a single clinical error, as opposed to generalised defects in his practice, it is at least possible that the PCC would not have imposed these or any conditions. In this event the appropriate disposal might well have been a reprimand. Consequently their Lordships have come to the conclusion that the integrity of the finding of serious professional misconduct is undermined and that the determination of the PCC that the appellant was guilty of serious professional misconduct is unsafe, and should be set aside.

Conclusion

18. Their Lordships will humbly advise Her Majesty that the appeal should be allowed, that the determination and findings of the PCC should be set aside and that the respondent should pay the appellant's reasonable costs of the appeal.