The Judicial Committee of the Privy Council Decisions

Salha & Anor v. General Medical Council (GMC) [2003] UKPC 80 (24 November 2003)

ADVANCE COPY

Privy Council Appeal No. 32 of 2003

Dr Osama Hassan Salha Appellant

v.

The General Medical Council Respondent

and

Privy Council Appeal No. 35 of 2003

Mr Naim Abusheikha 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 24th November 2003

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Present at the hearing:-

Lord Hoffmann

Sir Martin Nourse

Sir Philip Otton

[Delivered by Lord Hoffmann]

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1. The precise mechanism by which the inner cell mass of the human embryo sometimes divides to produce identical twins is not fully understood. In 1994 Dr Mina Alikani, in association with three other doctors working at the Center for Reproductive Medicine and Infertility, Cornell University Medical Center (including her husband Dr Jacques Cohen) published a paper on the subject in the journal Human Reproduction (Vol 9, pp 1318-132l). She proposed that division sometimes happened when there was a hole or weakness in the zona pellucida, the transparent membrane which surrounds the cell, through which part of the inner cell mass is able to extrude itself and form a new cell. In support of this theory, she relied upon evidence from work which she and colleagues had done by way of in vitro fertilisation (IVF) at Cornell University Medical Center. In about three-quarters of these cases there had been micromanipulation of the zona pellucida to assist fertilisation and in the remaining quarter there had not. Six patients had given birth to identical twins and in all of these cases the zona pellucida had been micromanipulated to drill holes or else had been unusually thin. This, she argued, suggested a link between the physical state of the zona pellucida and the chances of having identical twins.
2. In 2000 Mr N Abusheika and Dr O Salha, who worked at Bourn Hall Clinic near Cambridge and St James's University Hospital in Leeds respectively, published a paper in Human Reproduction Update (Vol 6, pp 396-403)on the same subject. Mr Abusheika was a consultant and Dr Salha more junior. Also named as authors were Mrs V Sharma and Mr P Brinsden, who were respectively Head of the Assisted Conception Unit at St James's Hospital and Medical Director of Bourn Hall Clinic. The convention in such publications is that those authors who actually did the work are named first and the more senior figures exercise only a supervisory role. The authors analysed eleven cases of identical twins. Six of them had followed micromanipulation of the zona pellucida to assist fertilisation, by the technique known as intracytoplasmic sperm injection (ICSI). The incidence of identical twinning among patients treated with ICSI was 8.9% compared with 0.9% among patients given conventional IVF treatment. These figures, said the authors, "add further support to the notion that mechanical or chemical disruption of the mucopolysaccharide architecture of the zona pellucida could lead to monozygous or monoamniotic twinning", followed by a reference to Dr Alikani's 1994 article. The Abusheika/Salha paper also noted that seven of the 11 cases of identical twins involved women aged 35 years or over. They drew the conclusion that women given ICSI treatment and those aged 35 or over should be warned that they were at risk of having twins, with the possibility of complications which that sometimes involves.
3. After the paper had been published, Mr Brinsden as senior author received an e-mail from Dr Alikani's husband Dr Cohen, whom he knew well, pointing out that substantial parts of the paper (about seven paragraphs) had been copied without acknowledgement from the earlier article. Mr Brindsen was mortified. He rang the editor, said that he accepted responsibility as senior author and apologised. The journal published an apology headed "Plagiarism in Human Reproduction Update, Volume 6, issue 4, 2000" and there was general embarrassment all round. An editorial which accompanied the apology said that although the temptation to copy was sometimes understandable ("especially tempting for junior authors for whom their native language is other than English") it was quite unacceptable. However, in view of the logarithmic increase in the number of scientific journals published annually, it was "virtually impossible for both senior authors as well as editors and referees of journals to develop a system which will completely eliminate chances of duplication".
4. The matter came to the attention of the General Medical Council and disciplinary procedures were initiated. The proceedings against the senior authors were discontinued at the screening stage, no doubt for the reasons touched upon in the editorial. Mr Abusheikha and Dr Salha gave explanations which reflected badly upon one or other of them. Each claimed that he had had nothing to do with the composition of the paper. It was impossible to say which of them was telling the truth. The General Medical Council formulated the same charges against each of them. It is important to set out exactly what the charges were:

"1. a. You submitted a review paper and case report for publication in the journal of Human Reproduction Update.

b. The paper was published under the names of N Abusheikha, O Salha, P Brinsden and V Sharma in the journal Human Reproduction Update 2000 volume 6.

c. Included in the paper were seven plagiarised paragraphs from a previous paper written by Dr Alikani and published in 1994 in Human Reproduction volume 9.

2. a. You failed to adequately review the paper before its publication.

b. Your actions described from 1a to 1c above were

i unethical

ii unprofessional

And that in relation to the facts alleged you have been guilty of serious professional misconduct."

5. As originally formulated, paragraph 1c read "You included in the paper seven plagiarised paragraphs". This might have been read as a charge that each doctor had participated in conscious plagiarism. But the charge was amended at the hearing, perhaps because the General Medical Council foresaw some difficulty, in the light of the explanations given by the doctors, in proving which of them had actually written the paper or the knowledge each of them had about what the other had written. At any rate, the charges as ultimately put to the doctors alleged only a failure "adequately to review the paper before publication" and not conscious copying.
6. At the trial, both doctors admitted all the facts alleged against them, did not contest that they could amount to serious professional misconduct and gave no evidence. Mr Davies, who appeared for the General Medical Council before the Professional Conduct Committee, referred to rule 57 of the Council's guidance on Good Medical Practice, published in July 1998 and current at the time when the Abusheika/Salha article was published. It said that there was "An absolute duty to conduct all research with honesty and integrity". He described this rule as "of only limited assistance"; a description with which their Lordships would agree, because the present case is not concerned with the falsification of research. There is no dispute about the authenticity of the eleven cases described in the paper. Nor is it suggested that the authors claimed Dr Alikani's theory as an original insight of their own. On the contrary, they attributed the insight into the importance of the "architecture of the zona pellucida" to Dr Alikani and gave a reference to her paper. They put forward their own research as merely confirmatory of her view. The offence was to copy her precis of the "state of the art", as it appeared in the literature, rather than express it in their own words.
7. Summarising his submissions to the Committee, Mr Davies said that "to allow copying on this scale is, at very least, grossly careless and an inexcusable oversight". This was in accordance with the terms of the charges, which alleged against each doctor that he failed to prevent copying and not that he himself copied. Mr Davies's description was expressly accepted by Mr Morris on behalf of Mr Abusheika and not really disputed by Mr Peacock for Dr Salha.
8. The legal assessor directed the Committee that there was no evidence as to whether "one or the other was the offending hand". He went on to say that in such circumstances –

"the temptation … to be avoided at all costs … is to blame the doctor for not giving evidence to help you … Having regard to the shape of head of charge 1, this is not a case where you can attribute blameworthiness to one or other."

9. He then quoted Mr Davies's description of the conduct admitted by the doctors as "grossly careless and inexcusable oversight" and said that it was for the Committee to decide whether these (or some other) adjectives were appropriate and to determine whether they were sure that it amounted to serious professional misconduct.
10. The Committee found that the charges of serious professional misconduct had been proved and, before disposal, received testimonials on behalf of both doctors which spoke to their competence and integrity. They then considered what sentences to impose. In both cases they said:

"All authors are responsible for the contents and substance of any paper to the extent that they have not taken reasonable steps to discharge their responsibilities. To accept the benefits of authorship while evading the responsibilities for any deficiencies in the paper is unacceptable and dishonest."

11. The Committee went on to say that the conduct of the doctors "reflect poorly on the integrity of the medical profession" and that "strong disapproval" was required. A reprimand would not be sufficient. Likewise, the imposition of conditions would not "address the fundamental lack of honesty and integrity displayed in this case". They accordingly decided to suspend the doctors from the register for three months.
12. Their Lordships do not consider that there was any justification for the findings of dishonesty or lack of integrity against the doctors. Dishonesty was not alleged against either of them and it appears to their Lordships that the Committee did exactly what the experienced legal assessor warned them in clear terms not to do, namely to conclude that one or other of them must have been dishonest and on that basis to blame them both. The doctors gave no evidence because they admitted the whole of the facts alleged by the General Medical Council. These facts, as their counsel explained, might be regarded as indicating a high degree of negligence but could not without more amount to dishonesty.
13. Miss Plaschkes, who appeared before their Lordships for the General Medical Council, said that the Committee was entitled to infer that whoever had not done the actual copying must have been aware that the other had done so. Furthermore, she said that the reference to the need for integrity in the conduct of research in Good Medical Practice was sufficient to put the doctors on notice that their honesty was in issue.
14. It is a fundamental principle of fairness that a charge of dishonesty should be unambiguously formulated and adequately particularised. The matters relied upon by Miss Plaschkes do not come anywhere near satisfying this requirement. The finding of dishonesty and lack of integrity therefore cannot stand.
15. The question then is what their Lordships should do about the sentence. It is not disputed that the failure to prevent plagiarism of substantial parts of the paper was serious professional misconduct, even though in this case the plagiarism related to the mode of expression rather than the scientific content. Ordinarily their Lordships would not interfere with what the Committee regarded as an appropriate sentence. But the Committee in this case regarded a three month suspension as appropriate for dishonest copying and it must follow that they would have regarded a lesser sentence as appropriate for a negligent failure to prevent copying. After considering the Indicative Sanctions Guidance published by the General Medical Council, their Lordships would in each case advise Her Majesty that the appeal should be allowed, the order for suspension set aside and a reprimand substituted. The General Medical Council must pay the costs of the appellants before their Lordships' Board.