The Judicial Committee of the Privy Council Decisions

Das v General Medical Council (GMC) [2003] UKPC 75 (06 November 2003)

ADVANCE COPY

Privy Council Appeal No. 25 of 2003

Dr. Dhirendra Nath Das Appellant

v.

The General Medical Council Respondent

FROM

THE COMMITTEE ON PROFESSIONAL

PERFORMANCE OF THE GENERAL

MEDICAL COUNCIL

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 6th November 2003

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Present at the hearing:-

Lord Steyn

Lord Hope of Craighead

Sir Andrew Leggatt

[Delivered by Sir Andrew Leggatt]

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1. On 11th March 2003 after a hearing at which the appellant was neither present nor represented the Committee on Professional Performance ('the Committee') of the respondent determined that his performance had been seriously deficient and directed that his registration be suspended forthwith for a period of 12 months. Against that order the appellant now appeals to Her Majesty in Council.
2. Having qualified in Britain and the Republic of Ireland, the appellant practised as a consultant surgeon in India before returning to England in 1990. After the necessary training he entered general practice in 1992 and has latterly been working as a single-handed practitioner in Salford. Following a complaint about the appellant's fitness to practise made by the Salford and Trafford Health Authority on 30th August 2000, the respondent appointed a medical screener to consider the appellant's case. Between September 2000 and September 2001 the screener conducted an investigation in course of which the following areas of concern were identified: poor communication skills with patients, health visitors and other staff, inappropriate or incorrect prescribing, failure to treat or inadequate treatment, and lack of insight into the need for professional development and retraining. The appellant was accordingly referred to the Assessment Referral Committee, which on 25th March 2002 concluded that an assessment of the standard of his performance should be carried out. It was carried out by an Assessment Panel consisting of Dr Joshi (Lead Assessor), Dr Reilly (Medical Assessor) and Mr Bell (Lay Assessor).
3. Meanwhile in consequence of complaints received the respondent's Interim Orders Committee on 30th October 2001 imposed conditions on the appellant's practice for a period of 18 months. On review on 14th May 2002 the appellant's registration was suspended for the remainder of the period of the order. On 7th August 2002 and 30th October 2002 when that Committee met again the conditions were ordered to remain.
4. The assessment was conducted by the Panel in two phases: phase 1, which was an assessment visit to the appellant's place of practice on 8th, 9th and 10th May 2002 and included an initial interview, visits to his surgeries, third party interviews, and a review of his medical records; and phase 2 on 27th September 2002, which consisted of a knowledge test, a clinical skills test and a simulated surgery. At the end of the assessment the formal opinion of the Panel was that the standard of the appellant's professional performance had been seriously deficient.
5. In their report the Panel rated nine out of fifteen aspects of the appellant's performance as "Unacceptable". They were: assessment of the patient's condition, providing or arranging treatment, record keeping, use of resources, treatment in emergencies, constructive participation in audit, assessment and appraisal, teaching and training, communications with patients, and relationship with colleagues, GPs and teamwork. Each of the remaining six aspects was rated as "Cause for concern". They were: providing or arranging investigations, working within the limits of competence, educational activities, working within the laws and regulations, respect for patients, trust and confidentiality, and arranging cover, delegation and referral. "Unacceptable" denoted that there was evidence of repeated or persistent failure to comply with the professional standards appropriate to work being done by the doctor, particularly where this placed patients or members of the public in jeopardy (i.e. seriously deficient performance), while "Cause for concern" denoted that there was evidence to suggest that the performance might not be acceptable but there was not sufficient evidence to suggest seriously deficient performance. No aspects of the appellant's performance were rated "Acceptable".
6. At the hearing before the Committee on 10th March 2003 the appellant was neither present nor represented. So the Committee first had to decide whether to proceed in his absence. Having carefully considered the circumstances of service of the notice of hearing, the Committee decided to do so.
7. Before their Lordships the appellant objected that the hearing before the Committee ought not to have proceeded in his absence. He claimed that he went to India and stayed for longer than he had originally intended because his brother died. He appeared to acknowledge having received at his home address before he went to India on 1st February 2003 a letter dated 16th January 2003 in which he was told that he would be given 28 days' notice of the hearing before the Committee. But he said that he did not remember receiving the notice itself. The letter containing the notice, however, was also dated 16th January 2003. According to the evidence, these letters were two of three sent by special delivery to the appellant's address on the same date and signed for together. On any view the Committee was entitled to conclude, as they did, that proper notice of the hearing was served on the appellant. Their Lordships learned nothing that would lead to a different conclusion.
8. The appellant also argued that the fact that he was not heard before the Committee constituted a breach of Article 6(1) of the European Convention, or alternatively a failure to accord him natural justice. But the answer to all such arguments is the same: he was properly served and the Committee's decision to proceed in his absence was a proper exercise of their discretion. As was pertinently remarked by counsel for the respondent in his written argument, if the Committee were not entitled to proceed in such circumstances, a person arraigned before them could avoid a final disposition of his case indefinitely by simply failing to attend.
9. At the substantive hearing before the Committee, when the case had been opened by the respondent's counsel, Dr Joshi gave evidence at some length in support of the report of the Assessment Panel. The assessment was wide-ranging and thorough. Notwithstanding the appellant's absence, the Committee's consideration of his case extended into a second day. When announcing the Committee's determination the Chairman said:-

"In determining whether Dr Das's performance has been seriously deficient, the Committee have noted all the information before them about Dr Das's performance since 1 July 1997, the date on which the GMC's performance procedures came into effect. This included the concerns of Salford and Trafford Health Authority, the report of the Assessment Panel, and the oral evidence given by the Lead Assessor at this hearing. Mindful of Dr Das's absence and the lack of legal representation, the Committee have taken pains to probe the Lead Assessor's evidence in detail to ensure absolute fairness to the doctor in the Committee's deliberations. It is a matter of regret that by not attending Dr Das has denied the Committee the opportunity to gain insight into the deficiencies of which we have heard during this hearing and his aspirations for the future.

Dr Das's performance was assessed by the Panel in the context of the principles set out in the GMC's publication, Good Medical Practice. The Committee have also had regard to those principles in reaching their decision today.

Having considered all the evidence before them, the Committee have been mindful of the necessity to be satisfied so that we are sure, particularly in the doctor's absence, of the standard of his performance."

10. The Chairman upheld the findings of the Assessment Panel as to the areas in which the standard of Dr Das's professional performance had been respectively "seriously deficient" and "cause for concern", and continued:-

"Having reached a determination that Dr Das's past performance has been seriously deficient, the Committee first considered whether it would be sufficient for the protection of the public to place conditions on his registration. However, we consider that the range and seriousness of his deficiencies are such that the imposition of conditions would be insufficient to protect the public from risk. The Committee also consider that Dr Das does not have any insight into his deficiencies and note the Assessment Panel's view that the standard of his professional performance is unlikely to be improved by remedial action.

In all the circumstances, the Committee consider that Dr Das presents a risk to patient safety and that it is not sufficient for the protection of the public to impose conditions on his registration. We have therefore decided to direct that his registration be suspended for a period of 12 months. In reaching this decision, the Committee are satisfied that we have weighed Dr Das's interests against the safety of the public and the public interest and that this direction is proportionate to the deficiencies revealed."

11. In written submissions to the Board, followed by testimonials from a number of doctors, the appellant contended that his performance was not open to the criticisms made by the Assessment Panel and that, in so far as it could be said to have fallen below the standard expected of him, it was excusable. He reiterated these submissions in his oral address to their Lordships. The Panel's account of the deficiencies of the appellant's performance were fully particularised; all the material findings were amply supported in evidence; and the hearing was eminently fair. In these circumstances the appellant's response did more to underline his lack of self-awareness than it did to exculpate his standard of performance.
12. The proper place for the appellant to have made his comments about the manner in which the Panel's tests were carried out was before the Committee. Because he failed to do so, the allegations against him were uncontested. Where an appellant has not given evidence before the body appealed from their Lordships cannot conduct any appraisal of the facts unless cogent grounds are shown for impugning the evidence that was led against him. No such grounds were shown here. On the contrary, even taking the matters relied on by the appellant at their face value, unchallenged by cross-examination, their Lordships are satisfied that any other conclusion than that which the Committee reached would have been perverse.
13. As Lord Walker of Gestingthorpe has lately observed when delivering the judgment of the Board in Sadler v General Medical Council [2003] 1 WLR 2259, 2266:

"The purpose of assessment is not to punish a practitioner whose standards of professional performance have been seriously defective, but to improve those standards, if possible, by a process of supervision and retraining, for the protection and benefit of the public."

14. Their Lordships are satisfied that the Committee's determination, which was a model of its kind, is unassailable. It has become abundantly clear that, whatever professional standards the appellant may have attained in the past, his performance is now so seriously defective as to be remediable, if at all, only by diligent retraining and appropriate further education. In the meanwhile the public must be protected by continuing his suspension.
15. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must bear the costs of the appeal.