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URL: http://www.bailii.org/uk/cases/UKPC/2003/42.html
Cite as: (2004) 75 BMLR 59, [2003] UKPC 42

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Carruthers v. General Medical Council (GMC) [2003] UKPC 42 (3 June 2003)

ADVANCE COPY

Privy Council Appeal No. 58 of 2002

Dr. Malcolm Euan Carruthers 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 3rd June 2003

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Present at the hearing:-

Lord Hope of Craighead

Lord Rodger of Earlsferry

The Rt. Hon. Justice Tipping

[Delivered by Lord Hope of Craighead]

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1. This is an appeal by Malcolm Euan Carruthers, who is a registered general medical practitioner. He appeals against a determination of the Professional Conduct Committee ("PCC") of the respondent Council ("the GMC") on 28 June 2002 that he was guilty of serious professional misconduct and against the PCC's direction that his registration should be subject to conditions for a period of 18 months. The charge of which he was found guilty was brought against him as a result of a complaint which had been made to the GMC about his conduct by another medical practitioner.

Background

2. The appellant was formerly a consultant and director of clinical laboratory services at the Bethlem Royal and Maudsley Hospital. He is now in practice as medical director of Gold Cross Medical Services in Harley Street. For more than 12 years he has devoted his practice exclusively to a study of the andropause. This is a relatively new area of study into the condition of ageing males who exhibit the symptoms and clinical features of reduced testosterone availability. The existence of the andropause as a distinct clinical phenomenon is, it appears, still being questioned in some quarters. Controversy about its existence is receding as the benefits of hormonal therapy for men are being more widely recognised. But it is an area of medicine into which only a minority of practitioners have yet ventured. The appellant accepts that he might be described as a pioneer in this field.
3. In 1997 the appellant set up a website under the name Gold Cross Medical which provided information about the andropause. The site was then expanded to provide a screening facility. This was done so that the appellant could assemble the same information about those who consulted the website as he could obtain from seeing patients in his surgery, with a view to giving them the benefit of screening and a full endocrine, biological and haematological profile. In order to set this enterprise on a sound financial footing he established a company which he called e-medicine Limited. He took advice from the tele-medicine section of the Royal Society of Medicine in the setting up of this website. In 2001 he gave a presentation about his website at the annual conference of the Society.
4. In November 1999 Mrs X brought her husband to the surgery of Dr Peter Ewing, a general practitioner. Dr Ewing was also a clinical assistant in old age psychiatry at the dementia assessment unit at the local hospital. It was obvious to him as soon as they met that Mr X, who was born in 1931, was suffering from very severe cognitive impairment. He could not talk, his behaviour was disorganised and almost all his movements had to be guided by his wife. Mrs X told Dr Ewing that her husband was suffering from vascular dementia and asked that he should be added to his list of patients. Mr X was already registered with another general medical practice in the same town. But Dr Ewing agreed to her request, as he saw that Mrs X was clearly very keen that he should do so and he did not feel that it was reasonable from him to refuse it. He took time over the next few months to obtain more information about Mr X. He studied his notes and discussed his case with his previous GP, his consultant psychiatrist and the community psychiatric nurse. He noted that shortly before Mr X had been brought to see him he had been admitted to hospital as an in-patient to deal with problems of verbal and physical aggression which were due to dementia of the Alzheimer's type. He concluded that Mr X was almost certainly suffering from Alzheimer's disease and not from vascular dementia.
5. It struck Dr Ewing that Mrs X had trouble in accepting that her husband might have an illness which was incurable. In his opinion she was a very vulnerable lady who might be open to exploitation by non-medically qualified therapists. He was the third GP with whom Mr X had been registered in the space of two years. The notes showed that Mrs X had disagreed with those who had been looking after him and that she had discharged him from hospital against medical advice. He was anxious to avoid that conflict and to establish the continuity of care which was needed to deal with Mr X's illness.
6. On 5 April 2000 Mrs X came into Dr Ewing's surgery and asked him to take a blood sample from Mr X to be analysed for testosterone deficiency by e-medicine Limited. She explained that she had become concerned about his testosterone level because he had undergone a hernia repair some years previously in the course of which the surgeon had had to remove one of Mr X's testicles. She thought that treatment for testosterone deficiency might make some difference to his dementia. She told Dr Ewing that her request for the blood sample was the result of contact which she had made on 23 March 2003 with the appellant through his website. Dr Ewing was already interested in obtaining a blood sample from Mr X for other purposes, so he arranged for a blood sample to be taken from him at the health centre.
7. About one month later Mrs X returned with an e-andrology report which she had obtained from the appellant through his website. It stated that Mr X had a marked andropausal state which should respond well to testosterone treatment. It suggested that he should be given weekly injections of 250mg of testosterone enanthate (Primo-teston Depot-Schering). Dr Ewing was of the opinion that this treatment was grossly inappropriate. He thought that the administration of weekly deep muscular injections to his confused and elderly patient would cause him undue distress. He also noted that testosterone was not licensed for the treatment of Alzheimer's disease or any other form of dementia. But he appreciated that, as result of the advice which she had received, Mrs X had high hopes that testosterone treatment would make a difference. So he proposed an alternative therapy using mesterolone, a weaker form of testosterone, to be administered orally. He hoped that this would avoid provoking conflict with Mrs X. He believed that it might also provide some non-specific benefits in terms of fat distribution, muscle strength and bone density. But he told Mrs X that he did not think that this treatment would make any difference to his Alzheimer's disease.
8. Mrs X contacted the appellant for further advice The appellant responded to her request on 9 May 2000 in terms of the following e-mail:

"Dear Joan – I'm afraid Dr Ewing is incorrect in this case. Mesterolone is just not strong enough to bring about the changes in brain circulation needed. The Primoteston depot injections are still, I'm firmly convinced, what are needed to stand a chance of helping your husband, and will not make him aggressive. Sorry, but that's my specialist opinion, and I very much regret that your doctor will not give the injections a trial in what sounds a desperate situation – if the doctor wishes to discuss it on the phone, I would be pleased to put the case to him."

9. A few days later Dr Ewing received a letter from Mrs X which enclosed a copy of the appellant's e-mail. He was very upset by it, as he had spent so much time trying to understand Mr X's case and to build up a good therapeutic relationship with Mrs X. It seemed to him to be giving the impression that he was denying to her husband the only thing that would help him. He telephoned the appellant and told him that he felt that he had breached the GMC's guidance in its publication Good Medical Practice. He said that he would be raising the matter with the GMC which, after discussing the matter with others in his practice, he then did.

The proceedings before the PCC

10. The GMC decided that proceedings should be taken against the appellant as a result of this complaint. His case was referred to the PCC. The charge against the appellant was in these terms:

"That being registered under the Medical Act,

1 (a). On a day on or before 5 April 2000, Mr X's wife, Mrs X, contacted you through an internet website for medical advice on her husband's clinical condition and treatment. In response, you advised that Mr X should receive weekly injections of 250mg of testosterone enanthate (Primo-teston depot-Schering).

(b). You took no or no adequate steps to

i. Conduct an appropriate physical examination of Mr X and/or

ii. Assess Mr X's medical records in order to establish his clinical history and properly ascertain his condition, and/or

iii. Ensure the information provided to you in an online questionnaire about Mr X's medical condition was truthful and correct, and/or

iv. Consult or liaise with Mr X's regular general medical practitioner or psychiatrist before issuing your advice.

(c). Your advice to Mr X to take testosterone was irresponsible in that

i. Mr X's testosterone level was normal, and/or

ii. There is no evidence that testosterone is of benefit to sufferers of Alzheimer's disease or vascular dementia, and/or

iii. Testosterone is not a licensed treatment for dementia of any kind, and/or

iv. You recommended injection of testosterone in an excessive dose, and/or

v. You did not warn Mr X or Mrs X of the side effects of testosterone treatment, and/or

vi. It was given in the course of conduct set out in (b) above;

2 (a). You corresponded with Mrs X via an electronic mail transmission dated 9 May 2000, in which you asserted that the treatment and management regime recommended by Mr X's regular general practitioner was incorrect,

(b). You thereby made an unnecessary and unsustainable statement about the general practitioner's knowledge and skills without adequate knowledge of Mr X's medical condition or treatment needs;

3 (a). The internet website through which you offered specialist medical treatment carried a self-test 'check-list' which members of the public may complete to indicate whether they have a hormone imbalance of hormone deficiencies. The 'check-list' is constructed in such a way that it produces results that suggest that subjects with normal hormone levels are advised that they require a hormone profile,

(b). The 'check-list' may exploit patients' vulnerability or lack of medical knowledge and arouse unfounded fears about their health;

4 (a). The internet website through which you offered specialist medical advice carried a statement that clients need not obtain a referral from their doctor to access your services,

(b). That statement conflicts with your duty to do all that you can to ensure that advertisements for specialist services issued by an organisation with which you are associated include the advice that patients cannot usually be assessed or treated by specialists without a referral, usually from a general practitioner;

5 (a). You provided an 'e-andrology report' on Mr X on the condition that neither you nor e-medicine Ltd would accept liability for treatment undertaken as a result of your assessment and advice,

(b). The stated condition can be interpreted as undermining the principle that you should remain accountable for the advice you provide."

11. The PCC were informed at the outset of the hearing that the facts stated in paragraphs 1 (a), 1 (b) iv, 1 (c) iii, 2 (a) and 4 (a) were admitted. Having heard evidence for the GMC and for the appellant, they found all the remaining facts proved. Having been addressed under rule 28 of the Professional Conduct Committee Rules 1988 they determined that, in the light of these facts, the appellant was guilty of serious professional misconduct. They directed that his registration should be subject to the following conditions for a period of 18 months:

"1. You shall not conduct any medical practice directly or indirectly through a website.

2. You shall attend a teaching hospital or academic department of endocrinology for a period of twelve months, observing assessment of patients, appropriate investigation and subsequent patient management. The attachment is to take place under the supervision of a Postgraduate dean.

3. You shall restrict your prescribing of drugs and prescribing recommendations to their licensed indications and recommended dosages."

12. The appellant appeals against the finding of serious professional misconduct. He also appeals against the direction that his registration should be subject to the second and third conditions which were set out in the PCC's determination.

Serious professional misconduct

13. Mr Hockton for the appellant said that the constitution of the PCC lay at the heart of this appeal. It consisted of three lay and three professional members. A fourth professional member had had to withdraw due to other commitments. The chair was taken by one of the lay members. He said that the case involved a number of highly technical issues as to which none of the members of the committee had any specific expertise. The findings to which he addressed this argument were that Mr X's testosterone level was normal, that there was no evidence that testosterone is of benefit to sufferers of Alzheimer's disease or vascular dementia, that testosterone is not a licensed treatment for dementia of any kind, and that the appellant recommended injection of testosterone in an excessive dose. He said that the question whether Mr X's testosterone level was normal was not nearly as simple as head 1 (c)(i) suggested and that a finding of fact in these bald terms was not justified. This was a complex issue on which different views could properly be taken. He submitted that the committee was unduly influenced by Professor Paul Stewart, the expert witness for the GMC. He was a professor of medicine with undoubted expertise in endocrinology, but he had no specific research interest in the andropause. Their decision showed that they attached no, or at least insufficient, weight to various international experts who gave evidence in the appellant's favour or had provided testimonials.
14. He also submitted that the decision that the appellant was guilty of serious professional misconduct was unfair. All he had done over the internet was to discuss the treatment in Mr X's case which he thought was appropriate. He was not, and did not purport to be, the doctor who was treating Mr X. He had made it clear by an appropriate notice on the website that the information which he provided was for informational and diagnostic purposes only, and that the patient's own physician and medical advisers should always be consulted before any diagnosis given on the site was acted on. As it happened, Dr Ewing decided to adopt a regime of testosterone treatment for Mr X when he was told that the appellant had recommended the use of testosterone. He maintained that the complaint was due as much to the way in which Dr Ewing had reacted to the fact that Mrs X had consulted the appellant through his website as to the comments which the appellant had made about Dr Ewing in his e-mail, which the appellant readily accepted had been unfortunate. The PCC had failed to appreciate that Mrs X had the right to find out for herself as much as she could about her husband's case from any information that was available. Their decision had significant implications for the practice and development of e-medicine in this country as the alleged failures in this case are inherent in the provision of any clinical advice over the internet.
15. Their Lordships do not accept these criticisms. There is no doubt that there was room for dispute about some of the more technical aspects of this case. But the issues which lay at the heart of the complaint were relatively straightforward. It was not necessary for the PCC to form a view as to whether the andropause was or was not a recognisable clinical phenomenon. The appellant's expertise in the field in which he had chosen to practise was not in question, nor was the complaint directed to his clinical practice in general. Nor was it being suggested that it was improper for clinical advice to be provided by him over the internet. The essence of the complaint lay in the assertion that, by intervening as he did in Dr Ewing's management of his patient's case and by asserting that he had reached a wrong decision as to what was appropriate, the appellant had undermined the relationship between Mr X and Dr Ewing as his GP. There is no reason to think that the PCC were ill-equipped to consider this issue, which lay well within the limits of their ability to judge whether the standards of the medical profession had been departed from and to assess whether what the appellant did amounted to serious professional misconduct.
16. There was sufficient evidence before the PCC to entitle them to find that each of the assertions of fact in the charge had been established. There was room for a difference of view as to whether Mr X's testosterone level was normal. That was Professor Stewart's view, which he adhered to after considering all the papers and reports which had been produced for the appellant. The appellant had used his own reference ranges based on his clinical experience. But it was open to the PCC to accept Professor Stewart's opinion on this point, which was consistent with the results of blood tests that were done in 1996 by an endocrinologist, Dr Connacher. The significance of this finding then had to be judged in the light of all the other facts which were established by the evidence. The essence of the complaint was directed to the fact that by challenging Dr Ewing's view as to what was appropriate without having all the relevant facts about Mr X at his disposal, in the e-mail which he sent to Mrs X the appellant was interfering in the relationship between Mr X and his general medical practitioner. The PCC were entitled to find that this was contrary to good medical practice. They were also entitled to find that the fact that Dr Ewing decided to administer a weaker form of testosterone orally did not in any way reduce the gravity of the appellant's conduct, in view of the reasons which Dr Ewing gave for deciding to adopt this treatment.
17. The question whether the facts, taken together and viewed in the whole context, amounted to serious professional misconduct is a matter on which the judgment of the PCC carries weight. Having considered the relevant material, their Lordships see no reason to reach a different decision on the evidence. The appellant's appeal against this part of the PCC's determination must be rejected.

The conditions.

18. Section 36(1)(b)(iii) of the Medical Act 1983 provides that where a fully registered person is judged by the PCC to have been guilty of serious professional misconduct, whether while so registered or not, they may, if they think fit, direct that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with such requirement so specified as they may think fit to impose for the protection of the public or in his interests. This provision limits the period during which the person's registration may be made conditional on his compliance with the conditions specified in a direction by the PCC. It must not exceed the period not exceeding three years which is specified in the direction. Unless they have been renewed after consideration of the person's case at a resumed hearing, the conditions will cease to have effect at the end of that period.
19. The appellant's primary argument is that an admonishment would have been sufficient in the circumstances of this case. He accepts that if conditions were to be imposed condition 1, which he was willing to submit to voluntarily, was appropriate. But he submits that conditions 2 and 3 were not justified by the findings of fact in this case, that they are disproportionate and in any event that condition 2 is unworkable.
20. Their Lordships consider that the PCC were entitled to take the view that it was necessary in the public interest for conditions to be imposed on the appellant's registration for an appropriate period. It was open to the parties in the course of their submissions under rule 28 of the Professional Conduct Committee Rules to make suggestions as to the content or wording of conditions which might meet the circumstances of the case. Neither side did so, beyond acknowledging in general terms that the imposition of conditions was a possibility. Their Lordships appreciate that to descend to this level of detail at the rule 28 stage might well have been thought by the appellant's counsel to be inconsistent with his primary argument, which was that a finding of serious professional misconduct was not justified by the evidence. But the rules do not provide for the parties, after a determination has been made on this point, to be given a further opportunity to make submissions as to the appropriate penalty. The conditions which the PCC decided to impose were, in accordance with the usual practice, devised by them during their discussions in camera without giving either side any prior opportunity to comment on them.
21. In practice this procedure, although less than perfect, does not usually give rise to undue difficulty. If experience shows that a condition which the PCC has decided to impose is impracticable or unworkable the matter can be dealt with at an early or expedited resumed hearing by the PCC in the light of the evidence: see rule 37(2) of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (SI 1988/2255). Mr Tyson for the GMC said that this was the established route for dealing with problems of this kind, and he suggested that this would have been the appropriate procedure in this case. This would have provided the PCC with an opportunity to reconsider their decision and to consider what changes, if any, were needed in the light of the evidence. He accepted that it was open to their Lordships to deal with the matter in these proceedings. But he submitted that, if the content of the conditions had been the only matter of substance which the appellant had been objecting to, the matter should not have been taken to appeal.
22. Their Lordships accept, of course, that if the only issue which the registered person wishes to raise relates to the content of the conditions which the PCC have decided to impose on him the appropriate way of dealing with the matter is to ask for the matter to be dealt with at a resumed hearing by the PCC. But that is not this case. The appellant has challenged the determination which was made against him on the merits as well as on grounds which relate to the appropriate penalty. And he disputes the imposition on him of conditions 2 and 3 on grounds of principle, not simply on the ground that experience has shown them to be unworkable. Their Lordships bear in mind also that the effect of the appeal has been to suspend the PCC's determination until the appeal has been disposed of. For all these reasons they are in no doubt that the issues which the appellant seeks to raise about these conditions are appropriate for consideration by their Lordships' Board.
23. Condition 2 requires the appellant to attend a teaching hospital or academic department of endocrinology for a period of 12 months. The purpose of this exercise, which is to be conducted under the supervision of a postgraduate dean, is said to be to enable him to observe the assessment of patients, the appropriate investigation of their cases and subsequent patient management. The appellant has produced letters from two persons whom he has approached which make it plain that this condition would be unworkable. Stephen Miles, Associate Dean (Diabetes and Endocrinology), of the London Department of Postgraduate Medical and Dental Education, states that it would be extremely difficult to arrange and that he sees little prospect, given the appellant's age, of his being able to obtain the training that has been demanded by the PCC. His opinion has been confirmed by Dr M J Wheeler, a consultant clinical scientist at Guy's and St Thomas's Hospital.
24. But the appellant has a more fundamental objection to Condition 2. This is that it is wholly unrelated to the circumstances of his case, which is concerned only with the provision of advice through the medium of his website. There was no evidence that he was in need of further training or supervision in the assessment of the many patients whom he sees in the ordinary course of his practice, the investigation of their cases and their subsequent case management.
25. Condition 3 requires the appellant for a period of 18 months to restrict his prescribing of drugs and prescribing recommendations to their licensed indications and recommended dosages. He does not suggest that this would be unworkable. But his complaint is that the restriction would unduly inhibit his clinical practice, which has not been the subject of any complaint or criticism. The effect would be to emasculate his practice, as it would prevent him from fulfilling his duty to act in the patient's best interests in the light of his specialist knowledge and experience.
26. Their Lordships consider that the criticisms which the appellant has made of these conditions are well founded. Mr Tyson for his part accepted that the appellant had a flourishing clinical practice of which no complaint had been made and that the conditions could be regarded as unfair to him. Condition 2 has no bearing on the case which was made against him by the GMC. The real malice of the complaint was his use of the website and the way in which this led him, without an adequate knowledge of the facts, to interfere with the management of Mr X's case by his general practitioner. The attachment which the condition describes would serve no useful purpose, even if the regime which it sets out was capable of being implemented. There is no evidence that the appellant is lacking in the skills of assessing, investigating and managing the patients whom he sees face to face in his surgery. For the PCC to require him to comply with this condition can properly be described as disproportionate. As for condition 3, it is plain that it would seriously inhibit the appellant in the conduct of his practice to an extent which the circumstances of this case could not be said to justify. There is no reason to think that the patients he sees in his clinic are at risk if, having considered their cases and made provision for their subsequent management, he decides in the light of his knowledge and experience that the use of drugs beyond their licensed indications and recommended dosages would be appropriate. The imposition of this condition too was disproportionate.

Conclusion

27. Their Lordships will humbly advise Her Majesty that the appeal should be allowed, but only to the extent of deleting conditions 2 and 3 which the PCC imposed on the appellant's registration under section 36(1)(b)(iii) of the Medical Act 1983. As the appellant has failed in his appeal against the finding that he has been guilty of serious professional misconduct, he must pay two thirds of the costs of the proceedings before their Lordships' Board.