Silver v. General Medical Council (GMC)  UKPC 33 (14 April 2003)
Privy Council Appeal No. 66 of 2002
Dr. Michael Ellman Silver Appellant
The General Medical Council Respondent
THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 14th April 2003
Present at the hearing:-
Lord Rodger of Earlsferry
Sir Philip Otton
[Delivered by Sir Philip Otton]
"2 At the material times you knew,
(a) the patient (d.o.b. 25.10.19) to be suffering from arthritis … admitted and found proved
(b) the patient's primary carer to be her son, Mr Raymond Smith, who was himself disabled suffering from oesteogenesis imperfecti; admitted and found proved
3 On Thursday 18 November 1999 Mr Smith informed your surgery;
(a) that the patient had suffered a fall at home, found proved
(b) that the patient had been visited by paramedics, found proved
(c) that the paramedics had advised that the patient may be suffering from a urinary tract infection, found proved
(d) that the patient required a domiciliary visit, found proved
4 (a) …
(b) No domiciliary visit took place, admitted and proved
5 On Friday 19 November 1999 Mr Smith informed your surgery,
(a) that the patient continued to suffer from a suspected urinary tract infection, found proved
(b) that the patient was unable to attend the surgery in person, found proved
(c) that the patient required a domiciliary visit; found proved
6 (a) …
(b) No domiciliary visit took place, admitted and found proved
7 On Monday 22 November 1999 Mr Smith informed your surgery …
(b) that the patient was in a lot of pain, found proved
(c) that it had not been possible to obtain a urine sample, found proved
(d) that he was unable to bring her to the surgery, found proved
(e) that the patient required a domiciliary visit, found proved
8 No domiciliary visit took place, admitted and found proved
9 On Tuesday 23 November 1999 Mr Smith telephoned the out-of-hours emergency service for your practice and a doctor, Dr Maung, from the deputising service Healthcall, attended the patient at 8.30 pm that evening, admitted and found proved
10 On Wednesday 24 November 1999 before 7.00 am Mr Smith delivered to your surgery Dr Maung's visit slip, indicating, amongst other matters, that the patient, admitted less date and found proved
(a) had suffered a fall, admitted and found proved
(b) was urine incontinent, admitted and found proved
(c) had a probable urine tract infection, admitted and found proved
(d) required a revisit within 3 days, admitted and found proved
11 On the morning of Thursday 25 November 1999 the patient's daughter, Mrs Barbara Portlock, informed your surgery that the patient
(a) was in pain, admitted and found proved
(b) had a swollen left leg, admitted and found proved
(c) required a domiciliary visit, admitted and found proved
13 The patient was visited at home by a doctor from Healthcall, Dr Surtees, at 3.13 pm that afternoon, admitted and found proved
14 (a) …
15 No domiciliary visit took place on Friday 26 November 1999, admitted and found proved
16 You did not ensure that your patient received suitable and prompt medical attention in that,
(a) you failed to respond adequately or at all to the requests for domiciliary visits made by Mr Smith … found proved
(b) you failed to act on the request by Dr Maung to revisit the patient within 3 days, found proved
"… The Committee finds you guilty of serious professional misconduct … We consider that our findings demonstrate a managerial, organisational and communications failure within your general practice. As a sole practitioner you have responsibility and are accountable for the organisation of your practice which includes ensuring effective lines of communication. We note that you have already taken some steps to remedy the situation.
The Committee have considered what action to take that is proportionate to your case. The Committee have decided to impose the following condition of your registration for a period of 12 months: that you should undergo a performance assessment of the organisation of your general practice by assessors appointed by the Council, and at the Council's expense."
"The General Medical Council publication 'Good Medical Practice' of July 1998 [the 'Blue Book'] in force at the time, clearly states that doctors must take suitable and prompt action when necessary and provide or arrange investigations or treatment where necessary. We have found that you did not do this. 'Good Medical Practice' also states that if you lead a team you must do your best to make sure that the whole team understands the need to provide a polite responsible and accessible service. The organisation of your reception and telephone systems in your practice causes us particular concern. The arrangements for handling requests for home visits, and following up reports from the deputising service, were unsatisfactory. The Committee are concerned by your lack of insight into your actions in diverging from this guidance."
"We consider that our findings demonstrate a managerial, organisational and communications failure within your general practice. As a sole practitioner you have responsibility and are accountable for the organisation of your practice which includes ensuring effective lines of communication. We note that you have already taken some steps to remedy the situation."
Their Lordships are satisfied that this was a proper approach by the Committee, no valid criticism can be made of it and that there was no inconsistency. Accordingly we reject this ground of appeal.
Finding of serious professional misconduct:
"The Committee have found that you did not ensure that Mrs Smith received suitable or prompt medical attention in that you failed to respond adequately or at all to the requests for home visits by Mr Smith and you failed to act on the request of Dr Maung to revisit the patient within three days ..."
There then followed the passage referring to the "Blue Book" already cited. And then:
"The Committee therefore finds you guilty of serious professional misconduct. However, we note that you work in a deprived area where it is difficult to get staff and medical assistance. You have a large list of patients whom you have served for 40 years as a sole practitioner. The Committee are aware that this is the only complaint recorded against you and have all read carefully the testimonials submitted on your behalf."
There then follows the passage relating to "managerial organisational and communications failure" already cited.
"Serious professional misconduct is presented as a distinct matter from a conviction in the British Islands of a criminal offence, which is dealt with as a separate basis for a direction by the Committee in section 36(1) of the Medical Act 1983. Analysis of what is essentially a single concept requires to be undertaken with caution, but it may be useful at least to recognise the elements which the respective words contribute to it. Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances. The misconduct is qualified in two respects. First, it is qualified by the word "professional" which links the misconduct to the profession of medicine. Secondly, the misconduct is qualified by the word 'serious'. It is not any professional misconduct which will qualify. The professional misconduct must be serious. The whole matter was summarised in the context of serious professional misconduct on the part of a registered dentist by Lord Mackay of Clashfern in Doughty v. General Dental Council  AC 164 at 173.
In the light of these considerations in their Lordships' view what is now required is that the General Dental Council should establish conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious. On an appeal to this Board, the Board has the responsibility of deciding whether the committee were entitled to take the view that the evidence established that there had been a falling short of these standards and also entitled to take the view that such falling short as was established was serious."
"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 this was his, with no suggestion that it was in any way representative of his otherwise unblemished record."
In Rao v The General Medical Council Privy Council Appeal No. 21 of 2002 the Board said at paragraph 17:
"It [the misconduct] 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 … 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."