The Judicial Committee of the Privy Council Decisions

Silver v. General Medical Council (GMC) [2003] UKPC 33 (14 April 2003)

ADVANCE COPY

Privy Council Appeal No. 66 of 2002

Dr. Michael Ellman Silver 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 14th April 2003

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Present at the hearing:-

Lord Hutton

Lord Rodger of Earlsferry

Sir Philip Otton

[Delivered by Sir Philip Otton]

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1. The appellant, Michael Ellman Silver, appeals from a direction of the Professional Conduct Committee (PCC) of the respondent Council given on 2nd August 2002 that the appellant was guilty of serious professional misconduct and that for a period of 12 months his registration should be conditional on his undergoing a performance assessment.

Background

2. The appellant is a registered medical practitioner. He qualified in 1961 and joined his father's family practice at 277, Fore Street, Edmonton, London N18. He became the sole practitioner in the practice. The patient in question had been a patient of his for some 35 years. There was no history of complaint from the patient or her family prior to the events of November 1999.
3. The patient, in her 80th year, suffered from arthritis and in the months prior to November 1999 had been predominantly confined to a wheelchair. Her primary carer was her son, Mr Raymond Smith, also a patient of the appellant's and also disabled, suffering from "brittle bone syndrome".
4. The essence of the complaint was that over a nine day period despite a number of prompts from the son, a daughter and two other health care professionals, the appellant failed to ensure that the patient received suitable or prompt medical attention following a fall in her home. The patient was eventually admitted to hospital by the emergency services and found to be suffering from a fractured neck of the left femur. The relevant events and chronology are contained in the Notice of Inquiry, the facts admitted by the appellant and the findings of the PCC:

"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 …

(a) …

(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

12 …

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) …

(b) …

(c) …

(d) …

(e) …

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

(c) …"

5. Following further submissions under rule 28 and a reading of testimonials on behalf of the appellant, the PCC again deliberated in camera and the Chairman announced the PCC's determination and direction:

"… 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 Appeal

6. Mr Andrew Hockton (who also appeared for Dr Silver before the PCC) contended that both the finding of serious professional misconduct and the penalty were wrong.
7. His primary complaint is that the PCC failed to reject as unreliable the entirety of Raymond Smith's evidence and, save where admitted, find that the facts were not proved. This witness was obliged to admit to the Committee in the course of his evidence that he had made a false allegation of a graphic exchange with the appellant on Friday 26th November 1999 (compounded by false evidence, in part retracted, that this discussion took place on Monday 22nd November). Moreover the contents of Mr Smith's affidavit and a diary entry compiled by him and his sister were also untrue. This false testimony did not relate to a peripheral issue but it was crucial to and linked with the critical events of the previous Thursday and Monday. Consequently the PCC were in error in rejecting a submission at the close of the respondent's case or at the conclusion of all the evidence that the evidence of the principal witness was so tainted with dishonesty that it could not be relied on in respect of any of the allegations in the Notice of Inquiry which were not admitted.
8. Their Lordships have examined the Record of the Proceedings with great care. Following the submission of counsel at the close of the respondent's case the Committee retired and on their return they upheld the submission in respect of heads 7(a), 7(c) in respect of the doctor personally, 12, 14 and 16(c). Thus the Committee had some reservations about the reliability of part of Mr Smith's evidence and acted accordingly. It did not automatically follow that they were obliged to reject the whole of his testimony. The Committee heard the witness subjected to sustained cross-examination and their own questioning and were well placed to assess his veracity, those parts of his evidence which they could not rely upon and those parts which they could safely accept.
9. It was thus open to the Committee to conclude that the manifest errors in Mr. Smith's evidence, grave as they were, did not wholly undermine the integrity of his evidence. Their Lordships can find nothing illogical in the Committee's approach to the issues of fact and are not persuaded that this is a case where it would be appropriate to substitute an alternative finding on these issues.
10. Counsel's second complaint was as to the finding of the Committee under head 16(a) that the appellant failed to respond adequately or at all to the request for domiciliary visits made by the son. Mr Hockton averred that this finding was unsustainable in the light of the PCC's finding under head 7(a) that the appellant never knew personally of this request. The evidence was that he was not in the surgery on the 24th November when Dr Maung's slip was delivered by Mr Smith. Consequently the only rational explanation for the adverse finding was on the basis of vicarious liability which was never the respondent's case.
11. Their Lordships are satisfied that there is no substance in this ground of appeal. There was evidence upon which the PCC could safely reach the conclusion that they did, and which did not depend upon the personal knowledge of the appellant. Mr Smith said that he had delivered the slip to the surgery. No positive case was advanced by the appellant, his witnesses or on his behalf that this was not true. Thus the note and its contents would have been brought to the attention of his staff. This request should have been conveyed to the appellant. The fact that it was not could have been due to a failure of system within the practice (for which the appellant would be personally responsible) or a failure of another to pass on the information for which the appellant might have been vicariously liable. The Committee was careful to draw the distinction and to base their findings on personal responsibility:

"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."

and later:

"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.

12. Finally, counsel submitted that the finding under head 16(b) that the appellant failed to act on the request by Dr Maung to re-visit the patient within three days is unsustainable. There was evidence that the request was satisfied by the visit by the deputising doctor on Thursday 25th November.
13. This argument can be dealt with shortly. It is clear that this visit was coincidental and was the result of the Healthcall system and not as a result of a specific request by the appellant or anyone else within the practice. Thus the finding was justified.

Finding of serious professional misconduct:

14. Mr Hockston submitted that the PCC's finding of fact did not justify a further finding of serious professional misconduct and that the Committee's approach was heavy handed and unfair. This was an isolated case and the evidence indicated (and the PCC from their findings substantiated) that the appellant was unaware of any deficiency in the practice arrangements with regard to house visits. The determination was based on a "managerial, organisational and communications failure" relating to one patient. There was no evidence of and no allegation of such a broad-ranging nature nor on the evidence could it have been made.
15. Miss Sarah Vaughan-Jones on behalf of the respondent submitted that the finding of serious professional misconduct was one which was open to the PCC given its factual findings and the Board should not interfere with that finding in the circumstances of the case. Although the conduct concerned only one patient there were repeated failures to respond to requests for medical care for that patient. The appellant accepted that if the family had not taken the patient to hospital "total disaster" would probably have resulted. Moreover, the appellant accepted in cross-examination that he bore the ultimate responsibility for ensuring records were properly filed and that receptionists or assistant doctors provided accurate information, maintained notes of patients and placed visit requests or Healthcall slips before doctors for decision.
16. Having studied the Record their Lordships have some concern about the manner in which the PCC reached its determination of serious professional misconduct. Having set out their findings of fact relating to each of the days in question the Chairman continued:

"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.

17. It is axiomatic that after the findings of fact all the relevant circumstances must be considered before a finding of serious misconduct can be arrived at. The matters set out in the paragraph immediately following the announcement of serious professional misconduct were, in their Lordships' view, relevant to, and should have been taken into consideration when arriving at, the decision of serious professional misconduct and not merely as a consideration as to the appropriate sanction and conditions the Committee were minded to impose.
18. In Roylance v General Medical Council [1999] Lloyd's Rep. Med. 139 Lord Clyde said at page 149:

"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 [1988] 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."

19. In Preiss v General Dental Council [2001] 1 WLR 1926 Lord Cooke of Thorndon said at paragraph 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 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."

20. In the instant case there can be little doubt that there was negligence and that it was open to the Committee to find that this constituted professional misconduct. However the Committee should have gone on to consider as a separate issue whether this amounted to serious professional misconduct. It is by no means self-evident that if this question had been posed it would have been answered in the affirmative. It was relevant to consider that this was an isolated incident relating to one patient (albeit over a number of days) as compared with a number of patients over a longer period of time. It was also relevant to take account of his long period (some 40 years) of unblemished professional conduct and the particular difficulties of conducting a single-handed practice in a deprived area of London.
21. In the instant case their Lordships are in a similar state of mind as in the case of Rao. Although the case does not turn on any advice tendered by the legal assessor, their Lordships are left with a profound sense of unease and are far from satisfied that, if the proper sequence of events had been followed and the appropriate questions posed and answered, the Committee would inevitably have arrived at the same conclusion on the 'seriousness' issue. Thus the integrity of the finding of serious professional misconduct is undermined and it should be set aside.
22. It is well established that the right of appeal under Section 40 of the Medical Act 1983 is unqualified, is by way of re-hearing, and that the Board is entitled to substitute its own decision for that of the Committee (see Ghosh v The General Medical Council [2001] Lloyd's Rep Med 433 and Preiss v The General Dental Council [2001] Lloyd's Rep Med 491). Moreover a decision of a professional tribunal affecting the right to practise of an individual is a determination of civil rights and obligations for the purpose of Article 6(1) of the European Convention of Human Rights (see Preiss (supra) at para. 9).
23. Their Lordships are of the view that this is one of the rare occasions where it would be right and proper for the Board to substitute its own decision for that of the Committee. Having reviewed all the circumstances and having given due weight to the appellant's long, unblemished record as a single handed practitioner in a deprived area, their Lordships have come to the conclusion that his misconduct did not call for the opprobrium that inevitably attaches to a conviction of the disciplinary offence.

Conclusion:

24. In their judgment on the evidence the determination that the conduct amounted to serious professional misconduct cannot be sustained and should be set aside.
25. Their Lordships will humbly advise Her Majesty that the appeal should be allowed, that the determination of serious professional misconduct should be set aside and that the respondent should pay the appellant's reasonable costs of the appeal.