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Cite as: [2003] UKPC 87

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Agarwal v. General Medical Council (GMC) [2003] UKPC 87 (18 December 2003)

 


ADVANCE COPY

Privy Council Appeal No. 16 of 2003

Dr Ravi Kant Agarwal Appellant

v.

The General Medical Council Respondent

FROM

THE PROFESSIONAL CONDUCT COMMITTEE

OF THE GENERAL MEDICAL COUNCIL

---------------

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 18th December 2003

------------------

Present at the hearing:-

Lord Walker of Gestingthorpe

Lord Browne-Wilkinson

Sir Philip Otton

[Delivered by Sir Philip Otton]

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1. The appellant, Dr Ravi Kant Agarwal appeals from a decision of the Professional Conduct Committee ("the PCC" or "the Committee") of the respondent Council on 30th January 2003 giving a direction that his name should be erased from the Medical Register, following a finding by the Committee that the appellant was guilty of serious professional misconduct.

Background

2. The appellant is 53 years of age. He qualified with the degrees of Bachelor of Medicine, Bachelor of Surgery at the SP Medical College, Bikaner, Rajasthan, India in 1973 and Master of Surgery in 1977. He first came to the United Kingdom in 1979, working initially in orthopaedics and Accident and Emergency and later in plastic surgery units in Bristol and Preston. He returned to India in 1985 to take up a junior Consultant's post in plastic surgery in New Delhi. He came back to England in 1990 and since 1992 he has been in full time practice as a plastic and cosmetic surgeon, operating at the Castlefield Clinics at 2 St John Street, Manchester and 10 Harley Street, London and at the Parkfield Hospital, Rotherham, Yorkshire.
3. The case before the PCC concerned two linked surgical procedures, known as penoplasty and girth augmentation, carried out on two patients in May 1997. The aim of both operations is enlargement of the penis: the former to increase the length in a flaccid state by severing the suspensory ligament and the latter to increase the girth by transferring fat cells to the shaft of the penis from a donor site elsewhere in the body. It is readily accepted that these are not therapeutic operations, to the extent that they are necessary for preservation or improvement of a patient's health.
4. On the 27th January 2003 the Committee inquired into the following charge against the appellant:

"That being registered under the Medical Act,

1. At the material times you were working as a cosmetic surgeon at Castlefield Clinics, 2 St John Street, 5th Floor, Manchester and 23 Harley Street, London;

Admitted and found proved.

2. In May 1997 you were consulted by Mr A regarding a penoplasty operation;

Admitted and found proved.

3. On 9 May 1997 you performed a penoplasty operation on Mr A;

Admitted and found proved.

4. During the course of the operation you also injected fat cells into the patient's penis;

Admitted and found proved.

5. You performed the operation under local anaesthetic with intravenous sedation;

Admitted and found proved.

6. Prior to performing the operation you failed adequately to explain to the patient the possible and likely complications of the procedures;

Found proved.

7. You failed adequately to explain the likely outcome and results of the procedures;

Found proved.

8. [You failed adequately or at all to inform the patient of the limitations of your own expertise;]

Not proved.

9. You were deliberately misleading to the patient as to the likely outcome of the procedures;

Found proved.

10. [You failed to counsel the patient against the necessity for the operation in his case]

Not proved.

11. You failed to take an adequate history from the patient;

Admitted and found proved.

12. You failed to refer the patient for any pre-operative psychological or psychiatric counselling when it was appropriate.

Admitted and found proved.

13. You failed in the circumstances to obtain informed consent from the patient;

Found proved.

14. [You asked the patient to sign a consent form after the administration of pre-operative medication;]

Not proved.

15. You failed to arrange for any or any adequate anaesthetic back-up during the operation;

Found proved.

16. You permitted your services to be advertised in a misleading way;

Admitted and found proved.

17. Your actions in respect of this patient were in all the circumstances,

a. Inappropriate,

Admitted and found proved.

b. Irresponsible,

Admitted and found proved.

c. Not in the best interests of the patient,

Admitted and found proved.

d. Dishonest;

Found proved.

18. In April 1997 you were consulted by Mr B regarding a penoplasty operation;

Admitted and found proved.

19. On 8th May 1997 you performed a penoplasty operation on Mr B.

Admitted and found proved.

20. During the course of the operation you injected fat cells into the patient's penis;

Admitted and found proved.

21. Prior to performing the operation you failed adequately to explain to the patient the possible and likely complications of the procedures;

Found proved.

22. You failed adequately to explain the likely outcome and results of the procedures;

Found proved.

23. [You failed adequately or at all to inform the patient of the limitations of your own expertise;]

Not proved.

24. You were deliberately misleading to the patient as to the likely outcome of the procedures;

Found proved.

25. You failed to counsel the patient against the necessity for the operation in his case;

Found proved.

26. You failed to take an adequate history from the patient;

Admitted and found proved.

27. You failed to refer the patient for any pre-operative psychological or psychiatric counselling when it was appropriate;

Admitted and found proved.

28. You failed in the circumstances to obtain informed consent from the patient;

Found proved.

29. Your actions in respect of this patient were in all the circumstances,

a. Inappropriate,

Admitted and found proved.

b. Irresponsible,

Admitted and found proved.

c. Not in the best interests of the patient,

Admitted and found proved.

d. Dishonest;

Found proved."

5. Mr A gave evidence that he was introduced to the appellant as a consequence of having seen an advertisement in "Men's Health" magazine. He received advertising material from Pre-Med Counselling Associates. He told the Committee that he had also carried out research on the Internet. He was seen by the appellant at the Castlefield Clinic in Manchester. The operation (including fat transference) was carried out under intravenous sedation on 9th May 1997. Mr A was extremely unhappy with the outcome. He had a painful and uncomfortable post-operative period. He did not achieve any increase in either length or girth and was left, in his own eyes, with a damaged and disfigured penis.
6. Mr B did not receive any advertising material. He consulted the appellant on the 30th April 1997, having seen an article in the press. The procedure (including fat transference) was carried out under general anaesthetic at Parkfield Clinic on 8th May 1997. He returned for post-operative check-ups and attended on four occasions for further fat injections between 2000 and 2002. In February 2002 Dr Agarwal examined Mr B and made a provisional diagnosis of Peyronie's Disease (a fibrous lump causing a bend or angulation in the erect penis) and notified Mr B's general practitioner suggesting that a urological opinion should be obtained. The evidence before the PCC was to the effect that there is no evidence in the medical literature that penoplasty causes Peyronie's Disease.
7. Mr David Ralph, a Consultant Urologist and Senior Lecturer at the Institute of Urology University College London gave evidence on behalf of the Respondent. His general overview was that penile lengthening and girth enhancing operations do not work. The maximum apparent length gain is about 2cm in the flaccid state only. It is only an apparent lengthening as the surgical procedure does not involve the body of the penis. The penis simply hangs lower as a result of cutting the ligaments which support it. The operation causes the penis to become less stable and it may be necessary to position the penis manually during intercourse. He was critical of the advertising material. There was no truth in the suggestion that a gain of 3 in. is possible. An experienced surgeon in this field would know that. The pattern in the cases of Mr A and Mr B were similar. Both had a normal sized penis. Both patients had psychiatric histories. Any doctor should have discouraged the operation in such patients.
8. The appellant gave evidence to the Committee. His counsel called his practice nurse, the medical co-ordinator and Mr C and Mr D (both patients who gave evidence of their satisfaction with the outcome of the procedures and were wholly supportive of Dr Agarwal).
9. As already indicated of the twenty-nine heads of charge, thirteen were admitted and two partly admitted. The PCC found ten heads of charge and a separate general allegation of dishonesty in respect of each patient proved. Four heads of charge were not found proved. In their Determination the Committee set out in narrative form what they had found proved. The Chairman continued:

"In the circumstances, you have contravened a number of principles contained within the GMC guidance, Good Medical Practice (1995 edition) applicable at the time. Patients are entitled to good standards of practice and care from their doctors. An essential element of this is observance of professional ethical obligations. In addition, good clinical care must include an adequate assessment of the patient's condition, based on the history and clinical signs, including, where necessary, an appropriate examination and referring the patient to another practitioner when indicated. You must prescribe only treatments that serve patients' needs. In professional practice, you must be honest and trustworthy and you must not abuse your patients' trust. The Committee have found that you exploited the vulnerability of both Mr A and in particular Mr B. Your role as a doctor should have been paramount.

With regard to advertising, from in or about 1994 PMCA disseminated advertising literature on your behalf. It was sent by PMCA to Mr A in early 1997. Good Medical Practice states that if you advertise your services, your advertisement must be honest. It must not exploit patients' vulnerability or lack of medical knowledge and may provide only factual information. All doctors' advertisements must follow the detailed guidance in the GMC's booklet Advertising. The Committee have decided that you knew of the contents of your advertising literature from in or about 1994 and that you knew that the literature was false and misleading in many respects. Despite that, you permitted it to continue to be disseminated even after being sued by Mr A in connection therewith and you did not seek to withdraw it, despite submitting to judgment in default of defence on 16 January 2001, until after the Interim Orders Committee meeting in December 2002.

The Committee take a serious view of the charges found proved against you. The Committee did take into account the fact that there is no evidence of you having been the subject of proceedings by the GMC in relation to your fitness to practise prior to the events involving the current proceedings. They have also taken into account the mitigation presented on your behalf. However, the Committee consider that your behaviour was not only discreditable to yourself but also undermines the confidence the public should be able to place in the integrity of members of the medical profession. Accordingly, the Committee find you guilty of serious professional misconduct."

The Committee subsequently directed his erasure.

The Appeal:

10. The appeal is against:

(1) Individual findings of fact in the heads of charge;

(2) The finding of serious professional misconduct; and

(3) The direction that the appellant's name be erased from the Medical Register.

The findings of fact

11. Mr Stephen Miller QC on behalf of the appellant sought to impugn the findings in relation to Mr A, namely, 6, 7, 9, 13, 15 and 17(d). Leading counsel submitted that Mr A's evidence was confused and internally conflicting both as to what he was told and to what he was not. Mr A agreed that he was told that the quality of the scarring would depend upon whether he was a good or bad healer, infection could sometimes happen but that he would be given antibiotics, bruising at the site could last a couple of weeks, his erection would probably be more horizontal and there would be numbness over the scar. He was told to avoid sexual intercourse for 6 weeks. He was not told that the penis would be unstable, but that had not been a complication of which Dr Agarwal himself had been aware to the extent that none of his patients had complained about it. As to the findings of the failure adequately to explain the likely outcome and results of the procedures, Mr A did not suggest that he was told that he could expect a gain of 3 in. in length. He said, initially, that the Appellant had said that he could not guarantee the increase in length, but anything less than 1 in. he would class as being unsuccessful and he had never had an unsuccessful operation. In cross-examination he said that from the words used by Dr Agarwal he took it that the gain would be unlikely to be less than one inch. The evidence of his partner (who accompanied him) was that she understood that Mr A had been told of an increase of "possibly up to an inch in length". Mr A was aware that he might have to return for further fat injections depending upon how the fat had taken.
12. Mr Miller relied heavily upon the evidence of Dr Agarwal's patients who were called to give evidence on his behalf. Mr C spoke of an increase in length of an inch and Mr D of slightly more than one inch. He submitted that it was not reasonable for the Committee to reject all of this evidence out of hand and to prefer the evidence of the respondent's expert urologist that penoplasty operation does not work. The PCC must have concluded as a consequence that Dr Agarwal had deliberately and dishonestly misled Mr A in suggesting that it did work.
13. In reaching their conclusion the Board have studied with great care the transcript of the evidence of Mr A. The Board is satisfied that there was evidence, which if accepted by the PCC, was sufficient to prove that the appellant had failed adequately to explain the possible and likely complications of the procedures (head 6); had failed adequately to explain the likely outcome and the results of the procedures (head 7); and was deliberately misleading to the patient as to the likely outcome of the procedures (head 9).
14. However the Board are less certain about the finding that the appellant failed to obtain informed consent (head 13). There was insufficient evidence to support this finding. Mr A never said that if he had been given specific information he would have declined to go through with the procedure. He told another expert urologist on another occasion that he had "a desire, perfectly natural amongst some men, to have a penis of what he regarded as acceptable proportions in the flaccid state"; that was his partner's understanding too and she said so in terms before the PCC. The circumstances of this case could not reasonably form the basis of an allegation of uninformed consent. The Board accordingly are persuaded that this finding should be set aside.
15. The Board are also concerned about the finding under head 17(d) that "in all the circumstances [Dr A had] acted dishonestly". As a background to the case the PCC had to consider the status and effect of the advertising material supplied to Mr A. Although Dr Agarwal had not been responsible for producing this material, since it purported to describe the services which he provided, he accepted responsibility for its content and distribution. Moreover he admitted, in response to head 16, that he had permitted those services to be advertised in a misleading way. Not least because they spoke of an anticipated gain in penile length of up to 3 inches. The Chairman when reciting the narrative said:

"The Committee have decided that you knew of the contents of your advertising literature from in or about 1994 and that you knew the literature was false and misleading in many respects. Despite that, you permitted it to continue to be disseminated even after being sued by Mr A and … you did not seek to withdraw it …"

Accordingly it is not surprising that the PCC concluded that with regard to the literature, its contents and dissemination, the appellant had been dishonest. However, their Lordships are left with the impression that this finding of dishonesty spilled over into the rest of the case culminating in the finding at head 17(d). The appellant admitted that his actions were inappropriate, irresponsible and not in the best interest of the patient. He always denied that he was dishonest in this regard. This conclusion cannot be supported by the evidence of Mr A and Mr Ralph and should be set aside.

16. As to Mr B, Mr Miller submitted that his evidence was unsatisfactory. His account of what he was told and what he understood changed many times. He said he could not actually remember the initial consultation very well. Dr Agarwal accepted in his evidence that routine complications were discussed and that he did not mention instability or bleeding because none of his patients had complained of such complications.
17. The Board has studied the transcript of Mr B's evidence with great attention. Their Lordships accept Mr Miller's primary submission that his testimony was unsatisfactory. In their Lordships' view it was inconsistent and even contradictory. Mr B initially said in evidence that he was told of a likely increase in between 1½ and 3 inches. However, in his witness statement he stated that Mr Agarwal could "increase its girth by 3 inches and its length by about 1½ inches". There was no evidence that Mr B did not achieve such an increase. He made it clear to the Committee that it was not the "incompetence" of the doctor that was the real reason he was there, rather because he had a severe bend in his penis. In cross-examination he accepted that he was entirely happy with Dr Agarwal's care until he suffered the bending of the penis in 2002, some 5 years after the operation. The Board have therefore come to the conclusion that there was no or no sufficiently reliable evidence to support the findings that the appellant had failed adequately to explain to the patient the possible and likely complication of the procedure (head 21), that he failed to explain the likely outcome and results of the procedures (head 22) and that he deliberately misled the patient as to the likely outcome of the procedures (head 24). Accordingly these three findings should be set aside.
18. The allegation that the patient should have been dissuaded from the operation (head 25) did not rest on Mr B's evidence. Mr Ralph testified (as the PCC clearly accepted) that the patient's penis was of a normal size and that he should have been counselled against the necessity for the operation. Their Lordships can find no reason for setting aside this finding.
19. Their Lordships have reached the same conclusions regarding head 28 (informed consent) and head 29(d) (dishonest) as they have in respect of heads 13 and 17(d). The respondent did not discharge the burden of proving that Mr B would have withheld his consent if he had been given more information or a fuller explanation. Indeed in cross-examination he gave a revealing answer:

"Q. … was part of your motivation to have the operation to improve your kissogram appearances, and improve the way you looked at that time?

A. Yes."

Indeed his only complaint was in respect of the complication which arose in 2002. It follows that this finding must be set aside.

20. As to the allegation of dishonesty this rested on an even less satisfactory basis than that at 17(d). Mr B had never seen the advertising material so that it could not have influenced his decision. He made no complaints against Dr Agarwal, and with the findings already set aside it is impossible to sustain the finding of dishonesty based on the admission to heads 26, 27 and 29 a-c alone. Accordingly this finding must be set aside.

The determination of serious professional misconduct

21. Mr Miller submitted that if disputed findings did not survive there was insufficient in the remaining heads of charge taken as a whole, admitted or proved, to support the determination of serious professional misconduct. The Board are unable to accede to that submission. Even subtracting the findings which have been set aside there was, in the Board's view, more than sufficient evidence to justify such a determination. The appellant accepted that in relation to Mr A he had acted inappropriately, irresponsibly, and not in his best interests. He admitted that he performed the operation on Mr A under local anaesthetic with intravenous sedation (head 5), failed to take an adequate history from the patient (head 11), and failed to refer the patient for pre-operative psychological or psychiatric counselling when it was appropriate (head 12). With regard to Mr B, the appellant admitted that he failed to take an adequate history from the patient (head 26), failed to refer the patient to any pre-operative or psychological or psychiatric counselling when it was appropriate (head 27) and that his actions in respect of this patient were inappropriate, irresponsible, and not in the best interests of the patient. The Board are satisfied that in the light of these admissions coupled with those heads which the Committee found proved and which have not been set aside there was ample justification for the PCC to conclude that the appellant had been guilty of serious professional misconduct. Accordingly this ground of Appeal is dismissed.

The direction of erasure from the Register

22. When announcing this part of the Committee's determination the Chairman said:

"In these circumstances, the Committee have decided that it is necessary to take action against your registration and have considered the range of sanctions available. In view of the serious nature of their findings, the Committee are of the view that it would not be sufficient to conclude this case with a reprimand.

The Committee then considered whether to impose conditions on your registration, which would need to be proportionate, enforceable and measurable. We have concluded that no such conditions would be appropriate.

The Committee also considered that an order of suspension would be inappropriate and would not serve the public interest.

The Committee are of the view that your behaviour is fundamentally incompatible with being a doctor because of your dishonesty and the abuses of trust which you have shown, particularly in relation to vulnerable patients. We have accordingly directed that your name be erased from the Register."

23. Mr Miller contended that the direction of erasure was disproportionate and unreasonable and (he would submit) the more so in the light of the Board's decisions on the findings of fact. Leading counsel submitted that these were two isolated cases. There have been no like complaints from the many hundreds of patients who have undergone similar procedures and, even in the case of Mr B there was no complaint about the operation itself or the information he was given about it. Leading counsel submitted that insufficient regard appears to have been paid to his other surgical work, about which no complaint was made. The Committee's findings relate to two penoplasty cases in which the initial procedure was carried out in May 1997, almost six years before the hearing. These operations only represented a very small minority of his practice. There was nothing to suggest that there had been any other problems before or since. Moreover the appellant had decided to stop carrying out this type of surgery in any event. Erasure, which will inevitably mean that restoration would not be possible for at least 5 years, will effectively spell the end of the appellant's medical career. The appellant is left with the perception that by punishing him with erasure the Committee found the surgery in which he was involved distasteful and that his practice was not worthy of preservation.
24. The Board recognises the force of Mr Miller's submissions. However, this was a case of considerable gravity and the PCC from their findings and on his admissions decided that there were deficiencies in his conduct. It would therefore still be open to the PCC to determine that erasure was still the appropriate sanction and that any other sanction was inappropriate. It is a matter of regret that the impressive testimonials which were available before the PCC and in addition those placed before the Board were not adduced in evidence. It may be that if these matters had been before them the PCC might have allowed him to practise in the rest of the range of his speciality. The Board consider it appropriate to set aside the finding of erasure and to remit the question of sanction. The final decision must be taken by the PCC in the light of the outcome of this appeal and the evidence which was not made available to them. In conclusion, the Board were informed that this particular part of his surgical practice represented only 15 to 20% of his total activity. It was suggested on behalf of the respondent that it was more in the region of 60%. By remitting the matter to the PCC the appellant will be given the opportunity to adduce documentary and oral evidence as to the true proportion.

Conclusion

25. In conclusion, their Lordships will humbly advise Her Majesty that;

(1) the appeal against the findings of fact in the heads of charge identified above be allowed and that those findings should be set aside;

(2) the appeal against the determination of serious professional misconduct be dismissed;

(3) the order of erasure from the Medical Register should be quashed and the question of sanction remitted to the PCC for further consideration; and

(4) there be no order for costs.