The Judicial Committee of the Privy Council Decisions

Raji v. General Medical Council (GMC) [2003] UKPC 24 (19 March 2003)

ADVANCE COPY

Privy Council Appeal No. 75 of 2002

Dr. Adil Mahmud Raji Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 19th March 2003

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Present at the hearing:-

Lord Steyn

Lord Rodger of Earlsferry

Sir Andrew Leggatt

[Delivered by Lord Steyn]

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1. Dr Raji appeals under section 40 of the Medical Act 1983 against a decision by the Professional Conduct Committee of the General Medical Council made on 20 August 2002, which suspended his right to make further application for his restoration to the register.
2. Dr Raji is now 60 years old. In early 1999 Dr Raji faced disciplinary charges of extreme seriousness before the PCC. The PCC found charges proved that Dr Raji had prescribed morphine sulphate to a "Mr A". The PCC found that in the circumstances Dr Raji's conduct was improper and irresponsible.
3. In outline the case established was as follows. Dr Raji had received a letter from Mr A's solicitors dated 28 February 1997 informing him that Mr A was a recovering addict, due shortly to undergo treatment, and requesting Dr Raji not to give him any prescriptions. Dr Raji had also received a letter from Dr Robert Lefever explaining that he was treating Mr A under a regime of total abstinence and requesting him not to give him any prescriptions. Dr Raji had written a letter to Dr Lefever dated 6 March 1997 stating that he would not prescribe drugs to Mr A. Dr Raji issued prescriptions without examining Mr A. Dr Raji issued the prescriptions without consulting Dr Lefever. Dr Raji knew or should have known that prescribing drugs to Mr A in those circumstances was likely to be contrary to his best medical interests.
4. On 25 February 1999 the PCC ordered the erasure of Dr Raji's name from the Register. Dr Raji did not appeal against this decision. In August 2000 Dr Raji applied for the restoration of his name to the register. By a decision of 8 August 2000 the PCC refused this application.
5. In 2002 Dr Raji commenced his second application for restoration of his name to the register. On 20 August 2002 the PCC heard Dr Raji's second application. The outcome of the application was contained in the decision announced by the Chairman. The relevant passages in the transcript read as follows:

"The Chairman: Dr Raji: The Committee have heard that on 25 February 1999 your name was erased from the Register for serious professional misconduct and that application for restoration in August 2000 was rejected. This followed your gross irresponsibility in prescribing controlled drugs for a patient who you knew or should have discovered was being treated for drug abuse under a regime of total abstinence. Despite having given undertakings to (1) solicitors acting for the patient (2) the consultant psychiatrist who was treating him and later (3) to the GMC that you would not further prescribe, you continued to do so.In considering this your second application for restoration to the Register, the Committee have taken into account the following matters:

a. The reasons why your name was erased from the Register in 1999 and was not restored in August 2000. The events leading to your erasure were very serious indeed. You now maintain that your behaviour leading to your erasure was a mistake. You contend that it was an error of judgment made in good faith. The Committee are concerned, having heard your evidence today, that you still do not fully appreciate the gravity of your dishonesty;

b. This application for restoration and the contents of your statutory declaration;

c. The Committee were concerned to learn that although you have attended some courses you have not produced evidence that you have made sufficient serious attempts to keep up to date with medical practice or current developments since August 2000. They were further concerned that you appear to have no insight into the effect this could have on your practice as a general practitioner;

d. The testimonials from patients and professional colleagues which were submitted on your behalf at the time of the hearing of your application for restoration to the Register in August 2000. They noted that you were highly regarded. Nevertheless, the Committee were concerned that you have submitted no new testimonials or evidence as to your conduct and activity in the two years since that hearing, with the exception of a small number of educational sessions;

e. Your testimony that you have severed links with your former practice;

Having considered all these matters, the Committee have determined that it would not be in the public interest for your name to be restored to the Register and have accordingly rejected your application.

As this is your second application for restoration to the Register in the current period of erasure the Committee have considered whether they should impose a direction indefinitely suspending your right to make a further application for restoration. They have decided to suspend your right to make a further application for restoration to the Register. They are convinced that this is realistic and that it is both in the public interest and in your own interest to bring this matter to a close."

Dr Raji did not appeal against the decision of the PCC to refuse to restore him to the register. He only challenged the decision of the PCC which directed that his right to make further applications for restoration of his name shall be suspended indefinitely. This decision and the reasons for it were contained in the last paragraph of the determination.

6. For the purposes of the appeal very little need be said about the proceedings. There are, however, two material matters to be mentioned. First, Dr Raji was not represented but was accompanied by a friend for moral support. Secondly, the PCC directed that Dr Raji must present his case for the restoration of his name to the register, as well as his argument why there should not be a direction to suspend his right to make further applications for restoration, before the PCC would make a decision on restoration. That is how Dr Raji had to present his case. And the PCC gave its decisions on both aspects at the same time. It is this feature of the case which is the principal ground of appeal.
7. Section 41 of the Medical Act 1983 provides:

"Restoration of names to register.

41

(1) Subject to subsections (2) and (5) below, where the name of a person has been erased from the register under section 36 above the Professional Conduct Committee may, if they think fit, direct his name to be restored to the register.

(2) No application for the restoration of a name to the register under this section shall be made to the Professional Conduct Committee –

a. before the expiration of five years from the date of erasure; or

b. in any period of twelve months in which an application for the restoration of his name has already been made by or on behalf of the person whose name has been erased.

(3)-(4) ...

(5) Before determining whether to give a direction under subsection (1), the Professional Conduct Committee shall require an applicant for restoration to provide such evidence as they direct as to one or more of his good character, professional competence and health; and they shall not give a direction if that evidence does not satisfy them.

(6) Where, during the same period of erasure, a second or subsequent application for the restoration of a name to the register, made by or on behalf of the person whose name has been erased, is unsuccessful, the Professional Conduct Committee may direct that his right to make any further such applications shall be suspended indefinitely.

(7) Where the Professional Conduct Committee give a direction under subsection (6), the Registrar shall without delay serve on the person in respect of whom it has been made a notification of the direction and of his right to appeal against it in accordance with section 40.

(8) Any person in respect of whom a direction has been given under subsection (6) may, after the expiration of three years from the date on which the direction was given, apply to the Professional Conduct Committee for that direction to be reviewed by the Committee, and thereafter, may make further applications for review; but no such application may be made before the expiration of three years from the date of the most recent review decision." [Emphasis added]

It will be observed that section 41(6) is silent on the question whether the issue of restoration must be determined before the question of suspension is considered.

8. The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988, SI 1988 No 2255, provide:

"Procedure for consideration of applications for restoration

46

(1) Where a person applies for the restoration of his name to the Register under section 41 of the Act, the following provisions shall have effect:-

(a) Subject to any direction given by the Chairman of the Professional Conduct Committee in special circumstances, an application shall not be considered by the Committee at any meeting unless, not less than twenty-one days before the first day of that meeting, there has been delivered to the Registrar a statutory declaration made by the applicant as nearly as possible in the form set out in Schedule 3.

(b) At the hearing of the application, the Chairman of the Committee shall first invite the Solicitor to recall the circumstances in which the applicant's name was erased from the Register and, if he so desires, to address the Committee and to adduce evidence as to the conduct of the applicant since the date the Committee directed that the practitioner's name should be erased from the Register.

(c) ...

(d) The Committee may, if they think fit, receive oral or written observations on the application from any body or person on whose complaint or information the applicant's name was erased from the Register.

(da) The Chairman shall next invite the applicant to address the Committee and, if he so desires, to adduce evidence as to his good character, his professional competence and his health since the date the Committee directed his name should be erased from the Register, and if any observations are received under sub-paragraph (d), the applicant shall have the right to address the Committee in response to those observations.

(db) Where an application is a second or subsequent application during the same period of erasure the Chairman shall invite the applicant to address the Committee on the question of whether his right to make further applications should be suspended indefinitely.

(e) The Committee may, if they think fit, adjourn consideration of any application to such future meeting as they may specify, and may require the applicant to submit evidence of his conduct since his name was erased from the Register.

(f) Subject to the foregoing provisions of this rule the procedure of the Committee in connection with such applications shall be such as they may determine."[Emphasis added]

Again there is no provision that the two aspects must be considered separately. So far as the rules are silent, the procedure to be adopted is in the discretion of the PCC: Rule 46(1)(f).

9. The grounds of appeal before the Privy Council were threefold namely:

(a) the procedure of requiring Dr Raji to deal with restoration and suspension at the same time was flawed;

(b) the reasons for the decision to suspend were insufficient;

(c) the decision was in any event wrong.

At the hearing of the appeal counsel for Dr Raji invited the Board to concentrate on the first issue and to rule on it as a discrete matter.

10. Counsel reminded the Board that the proceedings attract the protection of article 6 of the European Convention on Human Rights and that the requirements of article 6 are only satisfied because the role of the Privy Council is truly appellate in nature and not simply supervisory: Ghosh v General Medical Council [2001] 1 WLR 1915, at paras 31 and 32. He relied on article 6 and further submitted that the familiar domestic law principle of fairness in any event supplements the omission of the primary and subordinate statutory provisions to provide for separate hearing and determination of the issues of restoration and suspension. He submitted that the departure from this principle renders the decision on suspension unlawful. He submitted that Dr Raji, and any doctor facing a similar position, is disadvantaged if he has to deal with suspension without knowing the decision and reasons for a refusal of a restoration application.
11. It is of some relevance that two members of the PCC expressed their concerns about a decision to require Dr Raji to deal with the issue of suspension before knowing the decision and reasons of the PCC on the restoration application. They apparently felt, however, that the rules require this course to be adopted and the other members may have been under a similar impression. Counsel for the GMC made clear that the GMC does not contend that the rules require the applicant to deal with both issues at the same time. Moreover, she placed before the Privy Council Draft Guidance dated 29 October 2002 which is presently under consideration. Paragraph 20 of Annex B (Procedure for considering applications for restoration to the Register) reads as follows:

"If the PCC announce that your name should not be restored to the Register and your application is the second or subsequent application you have made since your name was erased from the Register, the PCC will invite the GMC's representative and then you, or your representative, to make submissions as to whether your right to make further applications for restoration should be suspended indefinitely. Having heard those submissions the PCC will consider the matter in private and announce their decision in public."

By a letter dated 25 February 2003, which was placed before the Board before the hearing, the solicitors for the GMC further observed:

"... our client's current view, as set out in Draft Guidance dated 29 October 2002, a copy of which is enclosed, is that submissions on the issue of the suspension of an applicant's right to reapply for restoration will be heard by the Professional Conduct Committee after a decision has been made by the Committee on the applicant's main application for restoration."

At the very least this material shows that the GMC regards a two-stage procedure as entirely workable. But it may also involve a recognition that such a procedure is fairer and more conducive to good decision-making.

12. In a helpful argument counsel for the GMC resisted the proposition that fairness requires as a matter of legal principle that the two issues be separated. She further submitted that Dr Raji was fairly treated and in no way disadvantaged. She emphasised that Dr Raji in fact put forward his case on suspension. The passage in the transcript records Dr Raji as saying:

"In my thinking, if the Professional Conduct Committee are not convinced by me being put back on the register, it is my suggestion that I can do six months or one year attached to the Charter & Nightingale Hospital where they have good experience in the use of narcotics and, at the same time, attach myself to an NHS general practice if the Committee feels I am not fit to be restored to the register, and so I should be given the chance to re-apply."

She invited the Board to dismiss the appeal.

13. Having given careful consideration to the arguments advanced on behalf of the GMC, their Lordships are satisfied that the procedure adopted was flawed. In particular they cannot accept the argument of counsel for the GMC that the procedure actually followed can be compared in any way to a court determining liability and damages separately in a civil case. In such a case there is no risk of unfairness since the issues are entirely distinct. However, the issues on restoration and suspension under section 41 may overlap. It is therefore fair that the doctor should know the decision on restoration, and the reasons for it, so that he can advance his arguments against suspension of the right to re-apply in the light of the reasons for refusing restoration. On a broader footing a doctor, unrepresented and circumstanced as Dr Raji was, may well feel disadvantaged by having to make alternative and conflicting submissions. Separate consideration of what are distinct but potentially overlapping issues will make it easier for the doctor to put forward his case against suspension effectively, e.g. he may make concrete proposals for any further training envisaged in the decision refusing restoration. Recognition of a procedural right of fairness, requiring separate consideration of the issues, will play an instrumental role in promoting just decisions. It will also reduce the risk of an appearance of unfairness.
14. There is, however, another perspective to be considered. If it is held that the restoration issue must be decided first, it will assist the members of the PCC in the sense that it will enable them to focus squarely on the separate issue of the need for a direction to suspend the right to re-apply for restoration. It will reduce the risk of members conflating the two enquiries. It will promote better decision-making. And it will avoid any appearance of inadequate consideration of the suspension issue.
15. The principle contained in paragraph 20 of the Draft Guidance will not in any way undermine the efficient disposal of cases. The hearing of the suspension issue, if it arises, will be comparatively brief and will almost invariably be able to be concluded on the same day. Counsel for the GMC raised a practical argument against the Privy Council enunciating such a principle of fairness. She said that the parties may agree on dealing with the two issues at the same time and that it would then be wasteful to have a hearing in two stages. In such an eventuality the broad and flexible principle of fairness would not have been breached if the two stages were considered together.
16. Their Lordships are satisfied that the public law principle of fairness requires that the issue of suspension should be considered separately after the decision on restoration and the reasons for it have been announced. It is therefore unnecessary to consider what, if anything, article 6 adds to the domestic law on this particular point.
17. Their Lordships cannot accept the argument of counsel for the GMC that, despite the procedural irregularity, it would be proper to dismiss the appeal. The possibility cannot entirely be excluded that Dr Raji was disadvantaged by the flawed procedure. He might have addressed the PCC differently if the correct procedure had been adopted. In any event, to accede to counsel's argument would tend to undermine the importance of the principle now established.
18. Given these conclusions it is unnecessary to consider the other grounds of appeal.
19. Their Lordships will humbly advise Her Majesty that the appeal should be allowed to the extent of quashing the direction suspending the right of Dr Raji to re-apply for restoration and remitting the matter to the PCC.