The Judicial Committee of the Privy Council Decisions

Al-Fallouji v. General Medical Council (GMC) [2003] UKPC 30 (10 April 2003)

ADVANCE COPY

Privy Council Appeal No. 87 of 2002

Mohammed Al-Fallouji 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

20th March 2003, Delivered the 10th April 2003

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Present at the hearing:-

Lord Steyn

Lord Slynn of Hadley

Lord Walker of Gestingthorpe

[Delivered by Lord Walker of Gestingthorpe]

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1. At the conclusion of the hearing on 20th March 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.
2. The appellant is a very experienced and highly qualified surgeon. In July 1995 he was appointed as a consultant surgeon at the Pilgrim Hospital at Boston, Lincolnshire. On 21 May 1999 he was suspended from his duties. On thirteen days between 8 and 28 July 2002 the Professional Conduct Committee ("the Committee") of the General Medical Council heard evidence and submissions in relation to charges against the appellant brought under nine heads, many of them elaborately subdivided.
3. It is not necessary to set out all the charges in detail. In summary they alleged irresponsible and inappropriate remarks made to female nurses and medical students; irresponsible and inappropriate physical conduct (in some cases amounting to indecent assault) towards female nurses, support workers and medical students; unacceptable conduct (in the form of an inappropriate message on a Christmas card) to a young and vulnerable female patient; unnecessary public criticism of and rudeness to junior doctors, nurses and patients; and (in three separate written communications) making criticisms of junior doctors which were misleading, an abuse of the appellant's position and (in two cases) dishonest. None of the charges alleged any failure of technical skill as a surgeon.
4. In the course of the hearing the Committee heard evidence from 45 witnesses, 35 called by counsel to the General Medical Council (Miss Glynn QC) and the appellant and nine witnesses called on his behalf. Miss Glynn was assisted by a junior of three years' call. The appellant was represented by well-known solicitors and by counsel of thirty years' call. Both his solicitors and his counsel were experienced in practice before the Committee.
5. The Committee found most of the heads of charge to have been proved (the summary above instances only charges which were found proved). Its findings carefully addressed each head and subhead of charge, and some findings differed from the language of the charges by omitting part of what was alleged (for instance two charges alleging that the appellant "shouted and swore at" junior doctors and staff in the operating theatre resulted in findings that the appellant had shouted, but not sworn). Many of the findings about the appellant's conduct towards women concluded that it was "irresponsible, inappropriate and below a reasonable professional standard" but only two findings included the word "indecent". In short the Committee appear to have considered the charges and the evidence dispassionately and with meticulous care.
6. At further hearings on 21 and 22 October 2002 the Committee, after hearing further submissions, found the appellant guilty of serious professional misconduct. It concluded (with great regret in view of his surgical skills) that erasure of his name from the register was the only determination which would protect the public and maintain public confidence in the medical profession.
7. Before the Board the appellant, acting in person, challenged the Committee's findings and its decision to erase his name. He placed before the Board 42 pages of written submissions, backed by numerous documents and extracts from documents. In his oral submissions he reiterated the same points. He complained that he had been the victim of a witch-hunt and of character assassination. He asserted that there had been a conspiracy among the managers of the Pilgrim Hospital to destroy him because he had very high standards and insisted on exposing the hospital's shortcomings. He alleged bias on the part of the Committee and unfairness in its handling of his case. He also complained of racial discrimination.
8. The appellant has in this way challenged the good faith of a large number of individuals who have been concerned, in different ways, in the investigation of his conduct, the laying of charges against him, and the process of adjudication on those charges. But serious allegations of that sort do not prove themselves. Nothing that the appellant has placed before their Lordships in his written and oral submissions has raised doubt in their minds as to bias or unfairness in the Committee's proceedings, or as to the Committee's careful findings having been in any respect against the weight of the evidence.
9. Their Lordships do not find it necessary to address all of the points relied on by the appellant in his lengthy submissions. It is sufficient to summarise their views on seven key points. These are bias; procedural unfairness; reasons; Dr Khrais; delay; racial prejudice; and erasure.
10. The principles on which the decision of a court or tribunal may be impeached on the ground of actual or perceived bias are not in doubt: see the decision of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 approved by the House of Lords in Porter v Magill [2002] 2 AC 357. The appellant complained of the constitution of the Committee because it comprised (as well as three lay members) two general practitioners and the chairman, Mrs Walker, whose training and background were in nursing. There was no surgeon on the Committee. Those facts fall far short of raising (in the mind of a fair-minded and informed observer) the perception that the Committee (and Mrs Walker in particular) would be in some way biased against surgeons, or in favour of nurses. Several of the most important witnesses were doctors, not nurses. No technical issues arose as to surgical skills or techniques. Unsurprisingly, the appellant's counsel made no application for Mrs Walker to recuse herself.
11. The only matter said to provide evidence of actual bias was the allegation that Mrs Walker conducted the proceedings unfairly. There is no substance in this allegation. This was a heavy case with a lot of evidence to be heard. Inevitably there was a large volume of witness statements, and although most were served on the appellant's solicitors on 25 March 2002, a considerable number of supplemental statements were served, especially at the end of May and during June 2002. The appellant's counsel did not make any application for an adjournment, nor did he object to any of the amendments (mostly deletions) made to the charges. The appellant complained that the chairman interrupted and cut short his oral evidence, and the evidence of some of his witnesses. The transcripts show that much of the evidence of the appellant and of Dr Hassan was discursive and that they failed to answer questions put to them in cross-examination. In the circumstances there was no unfairness in the chairman and the legal assessor urging these witnesses (as they did on several occasions) to listen to the question and to answer it. It was their duty to ensure that the evidence addressed the real issues in the case.
12. The appellant complained of the Committee's failure to give reasons for its conclusions at the fact-finding stage. But as the Board said in Gupta v General Medical Council [2002] 1 WLR 1691, 1699:

"… there is no general duty on the committee to give reasons for its decisions on matters of fact and, more particularly … there is no duty to do so in a case like the present where … its decision depends essentially on resolving questions as to the credibility of the witnesses led before it."

The present case was eminently one which turned on the credibility of witnesses on mundane and non-technical issues of fact.

13. Dr Khrais was a doctor at the Pilgrim Hospital working under the supervision of the appellant. He was the subject of two letters, written by the appellant to different recipients in August or September 1999, which the Committee found to be dishonest, misleading and an abuse of the appellant's position. Before the Board the appellant argued vigorously that his letters, so far from being false, told the unwelcome truth about the doctor, and that it was references later signed by two other consultant surgeons (who did not know the doctor so well) which were concocted. The appellant claimed that a letter from the Dean of the University of Jordan Medical School, supporting his case, had been wrongly excluded. However the appellant's experienced counsel did not present any sustained argument for its admission. Moreover the Committee made clear that it reached its conclusions on the two charges relating to Dr Khrais without reference to his credibility, and by reference to other, independent evidence.
14. The appellant made a double complaint about delay. He complained of the length of time which had elapsed between his suspension and the time when charges (later amended) were brought against him; and also about nurses and medical students having first made complaints about his inappropriate, unprofessional or indecent conduct only after his suspension. These points call for serious consideration. Complaints of misconduct (especially of a sexual character) should be made promptly; but it must be remembered that the appellant was in a position of power, a highly-regarded consultant surgeon with (as the appellant himself accepted) a strong personality and a loud voice. It is hardly surprising if nurses and medical students were afraid to complain, especially since some of the conduct complained of (such as biting a student nurse on the neck in the operating theatre) was almost incredible. The legal assessor did warn the Committee that they should in their deliberations take account of the passage of time. Their Lordships think it regrettable that so long elapsed between the appellant's suspension and the hearing but they do not consider that the appellant was unduly prejudiced by the delay.
15. The appellant claimed that he had been a victim of racial prejudice. Their Lordships can see nothing to support this claim. The appellant relied on published material showing that the General Medical Council is, following a report by Professor Isobel Allen of the Policy Studies Institute, undertaking a serious study of the reasons for different patterns and outcomes for complaints against doctors from different ethnic and cultural backgrounds. In fact the appellant appears (on the criteria adopted by Professor Allen) to be an "UK qualifier" rather than an "overseas qualifier". In any case a general report based on the analysis of quantitative data, and largely directed to preliminary screening and referral processes, cannot by itself cast any doubt on the fairness of the hearing of the serious charges against the appellant.
16. Finally the appellant submitted that the penalty of erasure was disproportionate and excessive. That submission cannot be accepted. In view of the Committee's findings, based on ample evidence, the decision to erase the appellant's name from the register was inevitable.