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Gangar v. General Medical Council (GMC) [2003] UKPC 28 (8 April 2003)

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Privy Council Appeal No. 15 of 2002

Kevin Francis Gangar Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE

28th January 2003, Delivered the 8th April 2003

------------------

Present at the hearing:-

Lord Steyn

Lord Millett

Sir Philip Otton

[Delivered by Sir Philip Otton]

------------------

At the conclusion of the hearing on 28th January 2003 their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed with costs and that they would give their reasons later. This they now do.

This is an appeal from a decision of the Professional Conduct Committee (the "PCC") of the General Medical Council (the "GMC") dated 25 January 2002 whereby the PCC adjudged the appellant to have been guilty of serious professional misconduct and further directed that the appellant's registration as a medical practitioner should be conditional on the appellant's compliance, for a period of three years, with certain requirements specified in the direction.

Background:

The appellant has had an impressive career in medicine. He was born and educated in Trinidad winning a scholarship to Sidney Sussex College, Cambridge. He did his clinical studies at Addenbrookes' Hospital, Cambridge, qualifying in 1980. He attained Fellowship of the Royal College of Surgeons of Edinburgh in May 1986 and Membership of the Royal College of Obstetricians and Gynaecologists in March 1987. He was appointed consultant in obstetrics and gynaecology at Ashford Hospital, Middlesex on 1 December 1993.

The case before the PCC:

The appellant faced a number of allegations spanning almost three years in the course of his work as a consultant at Ashford Hospital.

The precise allegations were set out in eight itemised heads of charge. Many of the allegations were admitted and formally declared proved at the outset. These admissions together with those facts which were found proved or not proved at the conclusion of the evidence and after submissions were as follows:

"1. At all material times you held the post of Consultant in the Obstetrics and Gynaecology Department of the Ashford Hospital NHS Trust;

Admitted & proved

2. a. In March 1995 you obtained approval from the West Surrey Local Research Ethics Committee to conduct a clinical trial entitled 'A Randomised, Open Label Crossover Study to Compare the Incident and Severity of Premenstrual Syndrome (PMS) Type Symptoms between Prempak-C 0.625 mgs and Kliofem';

b. In relation to the patients set out in the attached schedule your research was not conducted as specified in the protocol, in that

i. The patients were not randomised for treatment groups;

ii. The consent forms were not in the form specified in the protocol;

iii. Only two patients were prescribed Prempak-C as part of the study, but five were asked to continue with their current prescription of Prempak-C;

iv. 41 patients were prescribed only Kliofem throughout the study and were not switched at any stage to Prempak-C;

v. 35 patients in the trial took Kliofem for 6 months or more;

vi. more than two Doppler scans were performed on 27 of the patients;

vii. the Doppler ultrasound scans were not performed by a Consultant Radiologist;

Admitted & proved in its entirety

3. a. You presented three posters reporting on the results of your study at an international scientific meeting in Copenhagen in August 1997.

b. Yours posters were a misrepresentation of your study findings in that,

i. Poster 1 ("A comparison of premenstrual syndrome-type side effects in women taking cyclical HRT and continuous combined HRT") reported that 25 women had been established on Prempak-C then switched to Kliofem,

ii. Poster 2 ("The effects of continuous combined HRT (oral estradiol and norethisterone), on the pulsatility index in the internal carotid artery of women previously taking cyclical opposed HRT") reported that 13 healthy post-menopausal women established on a conventional cyclical opposed HRT, Prempak-C, received continuous combined HRT for four months,

iii. Poster 3 ("Continuous combined hormone replacement therapy reduced carotid artery pulsatility index and angiotensin converting enzyme activity in previously untreated post-menopausal women") reported on a group of only 12 previously untreated women who had taken Kliofem for four months whereas the study contained more than 12 women who fell within this category,

iv. You had not obtained ethical committee approval to measure ACE activity;

Admitted & proved in its entirety

4. a. On the 24th September 1997, Dr Tipples told you that she proposed to operate on the patient Mrs A, who she suspected had a ruptured ectopic pregnancy,

b. You told Dr Tipples not to deal with the case that morning on the grounds that,

i. It was hospital policy to deal with ectopic pregnancies on routine operating lists,

Admitted & proved

c. You had not discussed the matter with Mr Elias,

Admitted & proved

e. On 9 October 1997,

i. You put pressure on Dr Tipples to change her medical notes,

Not proved

ii. You threatened to adversely influence Dr Tipples' career,

Proved

f. You delayed the operation on [Mrs A] without first establishing her condition;

Proved

5. On the 3rd May 1996, you behaved in an unprofessional manner towards the members of the North West Surrey Local Research Ethics Committee who were considering your application for approval of a research protocol in relation to the effects of Tamoxifen on carotid blood flow;

Admitted & proved

6.a. Between February 1996 and November 1997 you delegated to Vanessa Dutton duties in relation to the performance and reporting of diagnostic ultrasound scans at the Early Pregnancy Unit,

b. That delegation was inappropriate in that Vanessa Dutton did not have adequate training, qualifications or experience in the use of diagnostic ultrasound scans in early pregnancy,

c. Concerns as to misdiagnoses made by Vanessa Dutton were raised with you by your consultant radiologist colleagues, at a meeting on 28 April 1997,

d. You reacted inappropriately to those concerns in that,

i. You were hostile and aggressive towards your colleagues at that meeting,

ii. You stated that a "trained monkey" could perform the scans,

iii. You failed to ensure that Vanessa Dutton ceased to carry out scans after the meeting and that all scans were carried out by a trained radiographer, as agreed at the meeting;

Admitted and proved in its entirety

7.a. In about October 1997 you applied to the Royal College of Obstetricians and Gynaecologists for preceptorship in laparascopic surgery,

Admitted & proved

b. As part of the application you stated that in 1996,

i. You had carried out 20 laparascopically-assisted vaginal/sub-total hysterectomies, and

Admitted & proved

ii. 8 laparoscopic hysterectomies with associated pathology,

Admitted & proved

c. You also stated that between January and June 1997,

i. You had carried out 20 laparoscopically-assisted vaginal/sub-total hysterectomies, and

ii. 6 laparoscopic hysterectomies with associated pathology,

Admitted & proved

d. The statements were false in that you had not conducted that number of the type of operations stated,

Admitted & proved

e. In submitting those statements you

i. Intended to mislead,

Not proved

ii. Acted dishonestly

Proved

8. In June 1997 during a consultation with the patient Mrs B, you

a. Implied that a colleague had not been truthful with the patient in informing her that her prognosis was very good.

Not proved

b. Behaved insensitively towards the patient,

Admitted & proved"

Thus it will be seen that the appellant admitted in full Parts 1, 2, 3, 5 and 6 of the charge and made certain admissions as to the remaining parts of the charge and that the only controversial elements were some parts of heads 4, 7 and 8.

The Chairman announced the PCC's determination at the end of which he said:

"Your behaviour over a three year period was a gross departure from professional standards. The charges above evidence deficiencies in your clinical skills, research skills and integrity, and severe deficiencies in your interpersonal skills.

In view of the findings in the heads of Charge pervading many areas of your practice, the Committee are in no doubt that your conduct fell far below that required of a medical practitioner and you have therefore been found guilty of serious professional misconduct.

...

It is clear from the evidence provided in mitigation that you have insight into the errors in your practice and you have taken considerable steps to help to overcome these ...

The Committee have directed that, both for the protection of members of the public and in your own interests, for a period of 3 years, your registration shall be conditional on your compliance with the following requirements:" (which were then set out).

The Appeal:

Ground 4

The facts underlying head 4 were the subject of a serious incident at Ashford Hospital and related to the treatment of a patient, Mrs A. Mrs A was admitted to the casualty department just after midnight on 24 September 1997. She complained of sharp abdominal pain and at 4.30 a.m. started to bleed. The SHO on duty, Dr Vente, suspected that Mrs A had an ectopic pregnancy and consulted the Registrar, Dr Tipples. At 8.30 a.m. Dr Tipples made a diagnosis that Mrs A had a ruptured ectopic pregnancy and needed to go to the operating theatre immediately. Dr Tipples arranged for the patient to be operated on at 10.30 that morning and made the necessary preparations. Dr Tipples informed the appellant that she would have to leave his morning clinic early in order to operate on Mrs A. The appellant became angry and told Dr Tipples that it was hospital policy to deal with ectopic pregnancies on the routine afternoon theatre list. At midday, the appellant and Dr Tipples went to Mrs A's ward. He did not examine the patient and looked at her notes merely to ascertain the name of her GP. Dr Tipples was obliged to inform the patient that her surgery would be delayed. In the event Dr Tipples performed the operation before the afternoon list. Her diagnosis was found to be correct.

The appellant's explanation was that, because the patient's cardiovascular status was stable and because she had an IVI ("invitro infusion") in situ and because Dr Tipples had not said anything to him to convey a sense of urgency, he took the view that there was no reason why Mrs A's operation could not be performed on the routine theatre list.

Head 4(e) was of particular significance. On 9 October 1997, the appellant had a conversation with Dr Tipples about the legal department's classification of patients' case as "near miss". He read through the notes and found an entry written by Dr Tipples timed at 9.00 am (but admittedly written later in the day) which stated "In view of clinic plus CVs ("cardiovasculars") stable to wait until end of Mr Gangar's clinic to proceed". The appellant was annoyed by the fact that a complaint had been made, that a near-miss had been recorded and by the note. He told Dr Tipples that it was not a clever thing to have written in the notes and that she should be more careful in future since a few quiet words over a pint of beer at the RSM ("Royal Society of Medicine") would not do her career very much good. Dr Tipples felt threatened and understood that she was being asked to change the note. She did not do so. The appellant's case was that he felt the note was inaccurate but that he did not ask Dr Tipples to change it.

In evidence the appellant stated that he spoke to Dr Tipples about the patient, he asked about the patient's pulse, blood pressure and whether she had an IVI running. Dr Tipples response was that there was no concern of that sort, and he therefore explained that given the pressure of the clinic, the patient would be operated on in the afternoon theatre list. He relied on Dr Tipples' assessment as she was a good registrar who was articulate and able to communicate well. He did not get an impression of urgency and she did not tell him that the patient had a ruptured ectopic pregnancy. He understood the patient to be well and stable. As to the conversation of 9 October he expressed the view that the operation was not a "near-miss". He was very cross about Dr Tipples' notes timed at 8.30 am and 9.00 am because they painted a picture of someone who was seriously ill and needed to have surgery instantly, and that he had deliberately delayed the operation. He agreed that he told Dr Tipples that it was not a terribly clever thing to have written in the notes. He did not threaten her or suggest that she should change her notes. Nor did he say that he would harm her career by talking to people over a pint of beer.

The Chairman recorded the Committee's determination on this issue as follows:

"On 24 September 1997, Dr Tipples told you that she proposed to operate on Mrs A, who she suspected had a ruptured ectopic pregnancy. You told Dr Tipples not to deal with the case that morning because it was hospital policy to deal with ectopic pregnancies on routine [operating] lists. You delayed the operation on Mrs A without first establishing her condition.

Paragraph 2 of "Good Medical Practice" states that you must make "an adequate assessment of the patient's condition, based on the history and clinical signs including, where necessary, an appropriate examination". You failed to do this before taking a clinical decision.

On 9 October 1997, you threatened to adversely affect Dr Tipples' medical career. It is unacceptable to bully junior doctors."

Miss Jean Ritchie QC for the appellant began her submissions by pointing out that in giving its decision the PCC, of its own motion (and without reference to counsel for either side or the Legal Assessor) sub-divided 4e into two parts as follows:

"4ei On 9 October 1997 you put pressure on Dr Tipples to change her medical notes;

4eii On 9 October 1997 you threatened to adversely influence Dr Tipples' career."

The PCC found 4eii and 4f proved, and 4ei not proved.

Leading counsel submitted that it was wrong in principle for the PCC to have amended the charge when giving its decision and without reference to either of the parties. This was not a mere case of dividing up the charge into its constituent parts, it involved splitting from each other two parts of the allegation which were dependent on each other. Thus, the gravamen of the allegation before the PCC's amendment was that the appellant had put pressure on Dr Tipples to change her records in the medical notes and the means by which he had done so was by threatening adversely to influence her career. The appellant had not come to meet a case that he had threatened adversely to influence the doctor's career in vacuo and the case had never been put against the appellant in that way. She contended that by altering the charge in this way the PCC were compromising their independence and stepping into the role of prosecutor; this was wrong in principle and in breach of Article 6 of the European Convention of Human Rights (ECHR) whereby the appellant was guaranteed the right to a fair hearing by "an independent and impartial tribunal". He was given no time or facility to meet the allegations put forward by the PCC. If the amendment had not been made, there can be no doubt that the appellant would have been acquitted of Part 4e of the charge in the light of the finding of the PCC in relation to Part 4eii of the split charge. Thus the effect of the action of the PCC in dividing the charge was to enable them to find the appellant guilty of something of which he would otherwise have been acquitted.

In his skeleton argument on behalf of the GMC Mr Mark Shaw QC contended that it was not unlawful for the PCC, of its own motion and without prior notice, to treat 4e as containing two separate factual allegations. The PCC's approach caused no prejudice to the appellant. Both limbs of head 4e were in play from the outset and, because each limb was denied, defence evidence was adduced to deal with them. By its findings, the PCC "acquitted" Mr Gangar of pressurising a colleague to change medical notes in order to deflect criticism from him, a very serious allegation. The action of the PCC did not infringe Article 6 of the ECHR or the requirements of natural justice.

Conclusion:

Their Lordships are unable to accede to the submissions advanced on behalf of the appellant. The PCC was fully entitled to find some facts proved and others not (even facts within the same head of charge), provided the appellant was not deprived of a proper opportunity to present his defence on all the alleged facts. The PCC concluded, on head 4e, that the appellant had threatened adversely to influence Dr Tipples' career. But it was not satisfied (to the criminal standard) that this had been done in order to put pressure on Dr Tipples to change her record in the medical notes. There is no inconsistency between these two conclusions. Each was quite capable of standing separately from the other. The practical effect of the PCC's division of the head was to find fewer facts than were alleged – a benefit, not a detriment to the appellant. The Committee acquitted the appellant of the more serious allegation of pressurising a colleague to change her medical notes in order to deflect criticism from himself. In doing so the PCC did not step into the role of the prosecutor or in any way compromise its independence. Their Lordships are not persuaded that the defence would have been presented differently if it had been thought that the PCC might make a different factual finding in relation to each of the two component parts. There was no breach of Article 6.

Head 7:

The issue underlying head 7 was the state of mind of Mr Gangar at the time he put admittedly false statements before the Royal College of Obstetricians and Gynaecologists ("RCOG"). In October 1997, the appellant completed an application form for preceptors (trainers) in gynaecological endoscopic surgery. He stated on the form that he had carried out 20 laparoscopically assisted vaginal/sub-total hysterectomies in 1996, and 20 between January and June 1997; and eight laparoscopic hysterectomies with associated pathology in 1996 and six between January and June 1997. On the basis of the information given he was accepted as a preceptor for Level 3 training in laparoscopy. In October 1998 Professor Shaw of the RCOG wrote to the appellant and asked for his confirmation that the figures he had provided were correct. He replied that the figures entered on the form were an estimate of the average monthly cases which he carried out in the NHS as well as in private practice. In fact, the hospital records showed that he had carried out three (not 28) laparoscopic vaginal hysterectomies in 1996 and six (not 26) in 1997.

In evidence before the Committee the appellant accepted that the forms he filled in for preceptorship were inaccurate. He had not appreciated at the time what preceptorship meant. He filled in the forms off the top of his head. It was a stupid thing to do and he regretted it. He was not aware of the computer system recording details of operations. The theatre register and the computer system did not correlate. He never accepted anyone as a trainee under the scheme, he did not intend to mislead and did not act dishonestly. In cross-examination he agreed that it was inappropriate to take a wild guess at numbers of operations performed, and that it was essential that information given in the forms was accurate. He had no reason to doubt the actual number of operations he had performed. It was a misunderstanding in that he did not appreciate the importance of submitting accurate figures. In answer to questions by the Committee he stated that he did not believe that the figures he was writing down on the forms would be enough for him to secure an appointment as a preceptor. He was aware at the time he filled in the form that if he had given the accurate figures, he would not be appointed a preceptor.

The PCC's finding on this issue was as follows:

"In about October 1997, you applied to the Royal College of Obstetricians and Gynaecologists for preceptorship in laparascopic surgery. As part of the application you stated that in 1996 you had carried out 20 laparascopically-assisted vaginal/sub-total hysterectomies, and 8 laparoscopic hysterectomies with associated pathology. You also stated that between January and June 1997, you had carried out 20 laparascopically-assisted vaginal/sub-total hysterectomies, and 6 laparoscopic hysterectomies with associated pathology. These statements were false in that you had not conducted that number of the type of operations stated. In submitting these statements you acted dishonestly.

Paragraph 39 of "Good Medical Practice" state that it is incumbent on a doctor to be "honest and trustworthy" at all times."

Miss Ritchie submitted that the finding that Part 7ei of the charge (that the appellant had intended to mislead) was not proved, but that 7eii (that the appellant had acted dishonestly) had been proved was an inconsistent finding. The first question was whether Parts i and ii were truly alternative. The face of the charge was ambiguous neither the word "and" nor "or" appeared between parts i and ii, and in the context of the charge, they in reality went together. The two parts of the charge were cumulative and not alternative and accordingly the finding of the PCC was perverse and inconsistent and cannot stand. Alternatively, a careful direction by the Legal Assessor was called for along the lines of a direction to the jury laid down by Lord Lane CJ in R v Ghosh [1982] QB 1053. Here the appellant was alleged to have been dishonest without having an intention to mislead. In his evidence he denied that he had acted dishonestly. In the circumstances it is submitted that the finding of dishonesty should not stand when the PCC had not been directed on the meaning of dishonesty in accordance with Ghosh. In the absence of such a direction, it is very possible that the PCC found that the allegation of dishonesty had been proved simply by applying an objective test and without applying their minds to the subjective test at all.

Conclusion:

Their Lordships have come to the conclusion that there is no substance in this ground. They are satisfied that the two heads can only have been alternatives. If the PCC had found that the appellant had "intended to mislead" it would have been repetitious for it to have gone on also to find that he "acted dishonestly". A finding of intent to mislead necessarily involves a finding of dishonesty. The effect of dividing heads 7e into two alternative limbs allowed the Committee flexibility to "acquit" the appellant of the more serious allegation (an intent deliberately to mislead a professional body) but to find proved a lesser allegation (recklessly submitting information to his professional body without caring whether that information was true or false or whether the body would be misled). The Committee found the less serious of the two alternative allegations against him.

On the evidence presented the PCC was fully justified in making its finding of dishonesty when applying the objective test. The information was not merely slightly inaccurate. It was nowhere near the truth. The figures speak for themselves. The surgical procedures in question were not at all routine. They were highly technical and innovative operations, not easily forgotten. The appellant admitted that he was "utterly foolish and utterly careless" in making a "wild guess" at the figures as he did.

Accordingly their Lordships are satisfied that there was no need for the Committee to have been advised by the Legal Assessor that there were two aspects to dishonesty (subjective and objective) in line with Ghosh. It is to be noted that leading counsel for the appellant did not suggest that a Ghosh direction was either necessary or appropriate. Even in a criminal trial there is no need to give a Ghosh direction unless the accused has raised the issue that he did not know that anybody would regard what he did as dishonest: R v Roberts (W) [1987] 84 Cr App R 117. The defence did not raise this issue.

The ground of "duplicity":

Miss Ritchie submitted that it was wrong and unfair for the GMC to have proceeded against the appellant in respect of a single charge of misconduct when the substance of the allegations making up that charge related to different patients and/or different matters, at different times. There could be no complaint of unfairness when a number of allegations of fact are set out in one charge provided there was a connection or nexus between the allegations. Here there was no common thread linking the diverse allegations which cumulatively were alleged to amount to serious professional misconduct. Thus there was a real risk of potential injustice. There was a real danger that the distinction between the real allegations and their respective contributions would become confused and undifferentiated in the minds of the PCC when they both formed part of the single charge.

Conclusion:

The Board is unable to accept this argument. We accept Mr Shaw's submission on behalf of the GMC that the allegations comprised a series of examples of high-handed, inappropriate or dishonest behaviour by the appellant towards patients and professional colleagues and to his own professional body. Thus there was nothing wrong with the PCC proceeding on the basis of an omnibus charge containing various heads. In Gee v General Medical Council [1987] 1 WLR 564 the doctor was notified of a single charge alleging the improper prescribing of drugs to eight different patients. Lord Mackay of Clashfern (with whom the other members of their Lordships' House agreed) said at page 575F-H:

"In my opinion, there is no unfairness in a procedure in which a number of allegations of fact are set out in one charge and it is alleged against a medical practitioner that these matters of fact, if established, render him guilty of [spm] provided that he has fair notice in time to prepare his defence of the nature of the evidence to be led in support of these allegations, as provided by [now rule 20 of the 1988 Procedure Rules], and provided the P.C.C. charged to adjudicate upon the matter make plain which of the allegations of fact, if any, they have found proved in time for the practitioner to make appropriate submission and lead any further relevant evidence available to him before a determination is made whether he is guilty of [spm]. In my opinion, the procedure set out in the rules meets these provisos and provided it is properly followed no unfairness results to Dr Gee from the fact that a number of distinct administrations of the drugs in question have been charged against him in one charge."

This procedure was followed in the present case. The Chairman listed each separate allegation and announced which facts were found proved and which were not. It was made clear that the PCC had considered each head and sub-head of charge separately. He announced that the facts found proved were capable of constituting serious professional misconduct and invited evidence and arguments on whether the facts found proved (and only those facts) did amount to serious professional misconduct. This was an entirely fair and appropriate procedure and their Lordships cannot see any prejudice from the way that the charge was compiled or the manner in which the PCC addressed each of the issues raised.

Finally, their Lordships conclude that it is not open to the appellant to advance this ground before the Board when no such objection was previously raised before or at the hearing. The charge was sent to the appellant's representatives in the Notice of Inquiry two months before the start of hearing. Before the opening of the hearing there were discussions between the two parties' representatives as a result of which a number of amendments were made to the charge. It is not without significance that at the end of this discussion and before the opening by counsel for the GMC leading counsel for the appellant confirmed in terms:

"Mr Gangar has no objection to this final amended charge". (Transcript D1/B-D).

Summary:

Their Lordships can find no basis for allowing this appeal. Accordingly they have humbly advised Her Majesty that this appeal should be dismissed with costs.