Campbell, R (on the application of) v General Medical Council [2005] EWCA Civ 250

Case No C1/2004/1271[2005] EWCA Civ 250
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
THE HON. MR JUSTICE SILBER
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 11 March 2005
Before
LORD JUSTICE JUDGELORD JUSTICE LONGMORELORD JUSTICE JACOB
Between
THE QUEEN (ON THE APPLICATION OF JENNIFER CAMPBELL)AppellantTHE GENERAL MEDICAL COUNCILRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Wolfe (instructed by Bindman & Partners) for AppellantBeverley Lang QC and Gerard Clarke (instructed by the General Medical Council) for Respondents
Judgment
[1]This is the judgment of the Court.[2]This is an appeal by Jennifer Campbell against the decision of Silber J, dated 28 May 2004, refusing her application for judicial review of the decision of the Profession Conduct Committee of the General Medical Council (“the Committee”), dated 2 October 2003, dismissing a charge of serious professional misconduct against Dr Nigel Birkin.[3]The essential argument before Silber J was that the Committee’s decision was flawed on what we may fairly describe as public law “reasons” grounds. Silber J concluded that the Committee had complied with its obligations to give reasons, and in particular that it had made sufficient and detailed findings about the seriousness of the errors established by the complaint. This conclusion was criticised by Mr David Woolfe in his grounds of appeal, but following the production in December 2004 of the Fifth Report of the Shipman Inquiry, chaired by Dame Janet Smith, he sought, and permission was granted for the appeal to proceed on an additional basis, not argued before Silber J. He was not invited to consider the correctness of nor to disapply the decision of the Judicial Committee of the Privy Council (“the Board”) in Silver v General Medical Council [2003] Lloyd’s Med. 333. We are now required to do so.[4]The case proceeded throughout on an agreed basis that the complainant who set the disciplinary process in motion was entitled to make an application for judicial review and challenge the decision of the Committee on “traditional” judicial review grounds. This is plainly a highly unusual process, and as we understood it, only the second occasion when such proceedings have been taken, and the first to reach this Court. The application was made after enquiry of the Council for the Regulation of Healthcare Professions whether it would exercise the powers vested in it by s 29 of the National Health Service Reform and Healthcare Professions Act 2002 to refer a decision to the High Court. The Council declined to do so because the “deadline” for any such referral had already lapsed before it was firmly established that the Council was vested with the necessary jurisdiction. Accordingly there was no practical alternative to Ms Campbell’s application for judicial review.[5]The disciplinary proceedings against Dr Birkin were set in train by Jennifer Campbell. They were subject to the Professional Conduct Committee (Procedure) Rules 1998, which came into effect on 15th January 1989. Ms Campbell’s complaint was referred to the Professional Conduct Committee, which in due course convened a hearing. In accordance with the procedure laid down by rule 27 evidence in support of the “facts alleged” as well as evidence by and for Dr Birkin was presented. The Committee was required to make a fact finding decision, and then, as a separate exercise of judgment, to consider whether the facts admitted and proved were “not insufficient to support a finding of serious professional misconduct”.[6]We shall gratefully adopt Silber J’s careful summary of the essential facts.[7]At all material times Dr Birkin was a consultant paediatrician employed at Noble’s Hospital, Isle of Man. From 1992, he had single-handedly created a paediatric service in the Isle of Man, and for 15 years, had run the neonatal unit unaided. His career was long and distinguished. His many patients included two small children, Michael Boyle and Amy Tasker.

Michael Boyle

[8]Jennifer Campbell gave birth to Michael Boyle on 7 December 1998, at 24 weeks’ gestation. He weighed 710 grams.[9]Between 13 March 1999 and 12 April, Dr Birkin failed to keep proper growth charts. These would have shown a weight gain of 105 grams in two weeks, slower than the expected gain of 300 grams. When Dr Birkin saw Michael on 12 April, he failed to carry out a full examination and make a proper note of the child’s head circumference. Between 6 April and 29 April, he failed to arrange regular weekly recordings of the head circumference, and to carry out weekly ultrasound scans. When he saw Michael at his clinic on 26 April, despite clear evidence of a rapidly increasing head circumference, Michael was not admitted for medical assessment and treatment in hospital. Dr Birkin failed to arrange for an immediate surgical referral, instead writing to Mr P L May, consultant paediatric neurosurgeon at Alder Hey Children’s Hospital asking him to see Michael within “the next week or 10 days”. Thereafter Michael was readmitted to Noble’s hospital after his parents had telephoned Liverpool Women’s Hospital directly seeking assistance from them. It was then that the admitting doctor at Noble’s Hospital made a diagnosis of marked hydrocephalus.

Amy Tasker

[10]Amy was born on 19 November 1997, and admitted to Noble’s Hospital as an emergency patient on 5 December 1997, presenting with symptoms of septicaemia. Next day, Dr Birkin arranged an ultrasound scan of Amy’s head. This was reported as showing “slight symmetrical dilatation of the ventricles without evidence of intraventricular haemorrhage or midline shift”. A further ultrasound scan of the head on 29 December was reported as showing that both lateral ventricles appeared to be dilated.[11]Amy was seen again by Dr Birkin on 6 February 1998. He failed to undertake a full examination, or to make adequate clinical notes, or to record the circumference of her head. An ultrasound scan on the same date was later reported as showing gross dilatation of the lateral ventricles, and dilatation of the third ventricle. Dr Birkin wrote to Amy’s general practitioner and described the ultrasound scan at the end of December as normal (when it was not) and suggesting significant ventricular growth during the previous 4-5 weeks. He saw Amy on 20 February. Again he failed to undertake a clinical examination, and made no medical note of his findings. The child’s head circumference, by now 42.2cm, was not recorded on a head circumference chart. Such a record would have provided a graphic illustration of how Amy’s head circumference had moved from below the tenth centile at birth to over the ninetieth centile at 14 weeks.[12]When Dr Birkin saw Amy again on 16 March, he again failed to make a clinical examination, and although Amy’s head circumference was now 43.8cm, again no record was made of these findings. He arranged a further appointment for 14 April, but failed to write to Amy’s general practitioner.[13]In summary, no full clinical examination was carried out between 6 February and 14 April. No adequate clinical notes were made. Dr Birkin failed to take weekly head circumference measurements, supplemented by ultrasound scans weekly, or as necessary. Despite Amy’s worsening condition, a referral to Alder Hey Children’s Hospital was delayed. Amy became very ill. She was admitted to Noble’s Hospital on 8 April as an emergency patient.[14]The Committee concluded that Dr Birkin’s treatment of Michael Boyle was “substandard, not in the best interests of the patient and likely to compromise patient safety”. It further found that his treatment and management of Amy fell below acceptable standards. In short, there was sufficient evidence which could (not did) support a finding that he was guilty of serious professional misconduct. Thereafter rule 28 applied.[15]This is headed:
“28. Circumstances, character, history and pleas in mitigation in cases relating to conduct (1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the chairman shall invite the solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor of the complainant may adduce oral or documentary evidence to support an address under this rule. [emphasis supplied] (2) The chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid.”
[emphasis supplied][16]Rule 28 itself distinguishes between the issue of serious professional misconduct, or as we shall describe it from time to time hereafter, culpability, and mitigation. The process is plainly intended to be sequential, first, whether or not the allegation of serious professional misconduct is proved, and in the express word of rule 28(2), “then”, mitigation which the heading to rule 28 strongly suggests is a shorthand reference to the plea in mitigation. All the matters referred to in rule 28(1) are addressed by the complainant, or the advocate presenting the case against the practitioner, both by way of submissions and evidence. Even allowing for the obligation on the advocate conducting the proceedings against the practitioner to ensure that the interests of justice are served, neither the advocate, nor the complainant would normally address a plea in personal mitigation which, as rule 28(2) suggests, and in accordance with normal practice, is left to the practitioner and those acting on his behalf. Naturally enough, although the rules suggest that the advocate for the Committee and the complainant are, as we have indicated, immediately concerned with the issue of culpability, and the practitioner with mitigation, the practitioner is entitled to a fair opportunity to deal with both issues. Thereafter rule 29 requires the Committee to decide whether the practitioner is guilty of serious professional misconduct, and, if so, the appropriate direction or sanction, if any.[17]Rule 29, headed, “Finding of serious professional misconduct”, provides:
“(1) The Committee shall then consider and determine whether, in relation to the facts proved in proceedings under rule 27, and having regard to any evidence adduced or arguments or pleas address to them under rule 28, they find the practitioner to have been guilty of serious professional misconduct. They shall record, and the chairman shall announce their finding. (2) If the Committee determine that the practitioner has not been guilty of such misconduct, they shall record, and the chairman shall announce, a finding to that effect.”
Read literally, rule 29 appears to enjoin the Committee deciding the culpability question to consider not only the proved and admitted facts under rule 27, but also the evidence and submissions advanced under both rule 28(1) and (2). This would not be consistent with the terms of rule 28 itself, and in our judgment requires that the Committee should take proper account of all evidence relevant to the culpability issue when deciding whether serious professional misconduct is proved. Where there is such a finding under rule 30, the Committee can either adjourn to decide what is to be done, or decide what to do there and then. At that stage no further provision is made for submissions in mitigation of penalty.[18]Perhaps unsurprisingly these rules caused some confusion. To begin with, representatives of the practitioner have sometimes not appreciated that they need to call evidence and make submissions about personal mitigation before any finding of serious professional misconduct is made. The difficulties are exemplified by comparing Selvanathan v General Medical Council, the Times, 26 October 2000 and Preiss v General Dental Council [2001] 1 WLR 1926. More important for present purposes, the rules require the parties at one and the same stage in the proceedings to address the question, and if appropriate call evidence to enable the Committee to decide whether the level of culpability amounts to serious professional misconduct, and having decided it, either there and then or later, and after taking account of any mitigation, to determine the consequence for the practitioner.[19]The phrase in rule 28(1) most likely to produce confusion on first reading is “the character and previous history of the practitioner” set in the context of arguments and evidence relating to “serious professional misconduct”. This is a difficulty only if it is assumed that character and previous history can never be relevant to the question whether the practitioner is guilty of serious professional misconduct. In truth evidence which may be relevant both to this issue and, if proved, mitigation, may overlap. Thus, the professional history of the practitioner may support a finding of serious professional misconduct on the basis that he has previously been found to have committed an identical professional error. This may not have been regarded as serious professional misconduct on the first or previous occasion, but the “history” may lead the Committee to conclude that on this occasion it does, just because the conduct in question was repeated. Without the previous history an acquittal would be appropriate. In a different context, the error under consideration may need to be examined in the context of a dedicated practitioner working in isolation and under huge pressure of, say, an epidemic. Such circumstances may be relevant to the question whether he should be found guilty of serious professional misconduct. It may indeed provide mitigation of circumstances, unrelated to penalty. If notwithstanding this evidence the case is proved, then precisely the same circumstances may also be relevant to mitigation of penalty.[20]In short, the same facts may on occasion impact both on the question whether the practitioner’s conduct amounted to serious professional misconduct, and on the appropriate consequential sanction. Nevertheless, although the same evidence may be relevant on both questions, it does not follow that they cease to be distinct issues requiring separate determination.[21]Notwithstanding some potential difficulties with the language of the rules, as a general proposition it would be surprising if rules governing the disciplinary procedures for the medical professional were to achieve the somewhat startling result that the question whether a practitioner was guilty of serious professional misconduct could be influenced by matters of personal mitigation which went to the appropriate disposal of the complaint. It is in our view elementary that any evidence considered by the Committee should be relevant evidence. Mitigation arising from the circumstances in which the practitioner found himself or herself may be relevant to the level of culpability: once serious professional misconduct is proved, personal mitigation will be relevant to possible penalty. In our judgment, these are distinct issues, to be determined separately, on the basis of evidence relevant to them.[22]The difficulty with this analysis of the rules is that it conflicts with the decision of the Board of the Privy Council in Silver v General Medical Council [2003] Lloyd’s Med. 333, or at any rate with the common understanding of the effect of the decision in the Committee itself. The context is that at the time of the decision in Silver, and when the complaint against Dr Birkin was being considered by the Committee, the Board was the final court of appeal against any determination by the Committee adverse to the practitioner. There was no entitlement in the General Medical Council to appeal against an acquittal. Subject to the very rare process of judicial review by a dissatisfied complainant, the decision of the Committee was final.[23]The starting point for the court considering an application for judicial review is that the conclusion of the body responsible for the discipline and standards of the medical profession commands the utmost respect. The principle which governed, and still governs the approach that any court invited to examine the decision of the Committee is fully explained in Libman v General Medical Council [1972] AC 217 at 220. Four general propositions were identified by Lord Hailsham, giving the reasons for their lordships’ decision that the appeal by Dr Libman should be dismissed. “(1) The appeal lies of right by the statute and the terms of statute do not limit or qualify the appeal in any way, so that the appellant is entitled to claim that it is in a general sense nothing less than a rehearing of his case and a review of the decision. See Per Lord Radcliffe in Fox v General Medical Council ([1960] 3 All ER at 226, [1960] 1 WLR at 1020). (2) Notwithstanding the generality of the above language, the actual exercise of the jurisdiction is severely limited by the circumstances in which it can be invoked. The appeal is not by way of re-hearing in the sense that the witnesses are heard afresh or the evidence gone over again (see per Lord Radcliffe). This, amongst other things, means that there is a heavy burden on an appellant who wishes to displace a verdict on the grounds that the evidence alone makes the decision unsatisfactory. (3) Beyond a bare statement of its findings of fact, the disciplinary committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which an appeal by way of rehearing lies to the Court of Appeal (see per Lord Radcliffe ([1960] 3 All ER at 227, 229, [1960] 1 WLR at 1021, 1023)). It follows from this that the only circumstances in which an appellate court can reverse a view of the facts taken by the disciplinary committee would be a case where, on examination, it would appear that the committee had misread the evidence to such an extent that they were not entitled to make a finding in the state of the evidence presented before them. (4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it. The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee’s decision. Where a criticism is made of the legal adviser’s account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision. See Fox v General Medical Council and per Lord Guest in Sivarajah v General Medical Council ([1964] 1 All ER at 507, [1964] 1 WLR at 116, 117).”[24]This last consideration is critical. Before the Committee counsel for Dr Birkin submitted that the Committee should be guided by the decision of the Privy Council in Silver. The legal advisor’s advice endorsed the correctness of the submission. The Committee accepted and adopted the advice. The Determination reads:
“The Committee were referred to the case of Silver v the General Medical Council…in which it was stated that all relevant matters must be considered before a finding of serious professional misconduct is reached and not merely in mitigation as to the sanction imposed.”
After noting something of the history of Dr Birkin’s contribution of paediatric and neonatal work on the Isle of Man the Determination continued:
“The Committee consider that the two cases about which it has heard evidence appear to be isolated incidents against a background of otherwise unblemished medical practice of over 30 years. They have also considered the outstanding testimonial that have been submitted on your behalf, both in person and in writing, by your patients and colleagues, all of whom state that you are a highly committed, caring and professional doctor who cares deeply about your patients. In all these circumstances, the Committee have concluded that you are not guilty of serious professional misconduct.”
[25]The inevitable conclusion is that evidence relevant to personal mitigation was used by the Committee to inform their decision that the proved misconduct did not amount to serious professional misconduct.[26]The main challenge to this decision on public law grounds is readily summarised. It was wrong of the Committee to attach weight to evidence which was exclusively relevant to mitigation. To the extent that Silver decided or encouraged the Committee to do so it was wrong. Although entitled to the greatest possible respect, the decision in Silver is not binding on this court in judicial review proceedings. For the GMC, the essential submission is equally straightforward. The Committee followed Silver, authority binding on it. It was required, and certainly entitled to do so, and accordingly to reach the conclusion that it did.[27]We must therefore address the decision in Silver. Dr Silver was in practice as a sole practitioner in North London. The complaint arose from his failure to see that a patient in her eightieth year was properly treated following a fall at her home, which, when she was eventually admitted to hospital, was shown to have caused a fracture of the neck of the left femur. This practice, so it was alleged, was inadequately managed and supervised. This was the specific complaint addressed by the Committee.[28]Following submissions under rule 28 and a reading of testimonials on Dr Silver’s behalf, the Committee announced its determination. “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.”[29]Sir Phillip Otton, giving the reasons of the Board for advising Her Majesty that the appeal against the determination of serious professional misconduct should be allowed, explained:
“It is axiomatic that after 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…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…”
[30]On this basis, the Board decided that it was relevant to the particular complaint against Dr Silver that he was in practice on his own in a deprived area. Moreover, the complaint related to a single patient, over a number of days, as opposed to a number of patients over a longer period of time. We respectfully agree that this evidence may have been relevant to the question whether Dr Silver’s practice was indeed so badly organised that a finding of serious professional misconduct was justified. It would also have been relevant to mitigation of penalty. Our immediate reaction is that this particular piece of evidence would normally be relevant only to mitigation of penalty, but we recognise that in the particular context of the complaint that Dr Silver ran a mismanaged and disorganised practice, forty years of practice without any previous complaint on this score might be relevant to the culpability issue.[31]If so, Silver would not be authority for the proposition that issues of culpability and consequences are indistinct, or that evidence relevant only to the second issue might be used when the first was under consideration. If that had been the view of the Board, we should have expected the structure of rule 28 to be specifically and directly addressed. No reference was made to it. Indeed the passage quoted in paragraph 29 implies that the issues of culpability and mitigation should be treated separately. On this view therefore, Silver may have decided no more than that in the specific case under consideration, the practitioner’s many years of “unblemished professional conduct” was relevant to the question whether the disorganisation and mismanagement of his practice amounted to serious professional misconduct. If so, the advice that the appeal in Silver should be allowed was based on the conclusion that the Committee had failed to take evidence relevant to culpability into account.[32]That narrow reading of the judgment in Silver has not been adopted. Perhaps the problem arises from the coupling in the judgment of the reference to Dr Silver’s “long period (some 40 years) of unblemished professional conduct” as one of “all the relevant circumstances” to be considered on the culpability issue. In any event Silver has been treated as authority for the proposition that evidence relevant to mitigation, or put another way, that all the evidence adduced in the context of rule 28(2) as well as rule 28(1) should be taken into account as part of the decision making process on culpability. If this is what Silver did decide, we have to examine whether it is correct, and how this approach, which seems to us to be inconsistent with the clear language of the rule, came to be adopted.[33]We acknowledge our indebtedness to chapter 21 of the Fifth Report by Dame Janet Smith following her Inquiry into the notorious case of Harold Shipman. Dame Janet expressed concerns, which we share, that the Board required that the Committee considering culpability should take account of material advanced in personal mitigation which was, “as a matter of logic and principle, irrelevant” to the issue whether the doctor was guilty of serious professional misconduct. She acknowledged, as we do, that some evidence of potential mitigation might be relevant to the seriousness of the misconduct under examination. However she noted it was “very common for the doctor to produce testimonials from patients and colleagues about his/her general abilities and character”, potentially relevant to sanctions, but “quite irrelevant” to serious professional misconduct. She observed:
“I have seen decisions in which it is apparent that, in deciding whether the doctor was guilty of serious professional misconduct, the Committee panel took into account purely personal mitigation from testimonials.”
In fairness to the panels which had done so, she pointed out that rule 28(2) allowed such material to be put before them, and as they were not lawyers, it was “natural that they would be influenced by it”. In any event, and we now come to the immediate point, Dame Janet observed that:
“The practice of taking irrelevant personal mitigation into account when deciding that the conduct amounted to serious professional misconduct was encouraged by some decisions of the Privy Council.”
[34]We must now examine them, beginning with Rao v GMC [2003] Lloyd’s Med. 62. Dr Rao was found guilty of serious professional misconduct which arose from a telephone conversation with the patient’s wife during which she reported that her husband was suffering from symptoms indicative of cyanosis. The doctor failed to make any proper inquiry, nor did he visit the patient. Instead he offered reassurance to the patient’s wife. In fact the patient was very ill. He was never taken to hospital and died at his home. The Committee concluded that the doctor’s “fundamental error” amounted to serious professional misconduct. On appeal to the Board, Dr Rao admitted that he had been negligent, but argued that his negligence did not amount to serious professional misconduct.[35]The appeal turned in substance on the advice of the legal assessor to the effect that, although Dr Rao’s conduct related to an isolated incident, the Committee could take into account that the incident comprised separate elements. On this basis serious professional misconduct could be established, even if, considered as a single event, it would not. This led the Committee to misdirect itself and the misdirection invalidated its decision. The Board then had to decide whether the outcome would have been the same if the Committee had properly directed itself. It suggested that correct advice from the legal adviser, and direction for the Committee should have included a reference to the observations “in an earlier Privy Council decision”, Preiss v General Dental Council [2001] 1 WLR 1926.[36]In Preiss the judgment of the Board was delivered by Lord Cooke of Thorndon. At page 1936 he observed:
“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 which inevitably attaches to the disciplinary offence…The specific shortcomings established against the appellant vary in gravity. After analysis, the most serious shortcoming was identified as an “elementary and grievous failure” amounting to serious professional misconduct, but some of the other charges did not, but formed part of the setting in which the seriousness of the appellant’s conduct had to be assessed.”
[37]Turning to the issue of penalty, Lord Cooke referred to a collection of testimonials placed before the Board. They amounted to very powerful evidence that the specialist was normally a skilful and dedicated specialist dentist. Lord Cooke continued:
“There is some force in a submission in the case for the appellant…: “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 that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record”.” “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 that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record”.”
[38]We shall return to the way in which this passage in the judgment came to be transposed from what it was, a record of the submission of counsel to what it perhaps seemed, an integral part in the reasoning of the Board. We must however repeat that the passage relating to the “otherwise unblemished record” of the appellant in Preiss appeared in a paragraph which was focussed exclusively on the issue of “penalty”. It had nothing whatever to do with the issue whether the appellant was guilty of serious professional misconduct. In context it was recognised by Lord Cooke that the unblemished record was relevant to personal mitigation, and we would suggest that his judgment supports the view that culpability and personal mitigation require separate consideration.[39]In Rao, however, the judgment of the Board given by Sir Phillip Otton, suggested that the Committee should take account of the observations in Preiss, in the context of what purported to be a precise quotation from the judgment of Lord Cooke. The language of the judgment in Rao, purporting to quote the exact language of Lord Cooke in Preiss reads:
“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 professional 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 that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record.”
This quotation was inaccurate. It omits two critical features. First, that the passage relating to the unblemished record of the practitioner was a note by Lord Cooke of a submission by counsel which, without adopting as his own, he acknowledged had “some force”. More important, such force as the submission carried related to the issue of penalty alone, and was therefore relevant only to mitigation. “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 …” “that for every professional man whose professional 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 that this was his, with no suggestion that it was in any way representative of his otherwise unblemished record.” This quotation was inaccurate. It omits two critical features. First, that the passage relating to the unblemished record of the practitioner was a note by Lord Cooke of a submission by counsel which, without adopting as his own, he acknowledged had “some force”. More important, such force as the submission carried related to the issue of penalty alone, and was therefore relevant only to mitigation.[40]In Rao, when later addressing the advice which should have been given by the legal assessor to give to the Committee in Rao, Sir Phillip Otton suggested that reference should have been made to the paragraphs from Preiss, as cited in his own judgment. On this basis, something more than a single incident of negligence 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 a hitherto unblemished career”. However, as we have shown, the reference in Rao to the relevance of the appellant’s “hitherto unblemished career” was based on a misreading of the observations of Lord Cooke in Preiss.[41]We note from the commentary on the report that attention focused on the observations of the Board about the role of the legal assessor rather than the possible impact of these observations on the application of rule 28.[42]We must return to Silver, decided some 4 months after Rao. The Board referred to the previous decision in Rao, and once again set out the mistaken analysis of what Lord Cooke had said in Preiss. The Committee should have taken account of Dr Silver’s “unblemished professional conduct” over a period of some 40 years when deciding whether his undoubted negligence amounted to “serious professional misconduct”. The result of the decisions in Rao and Silver was that decisions by the Committee that the practitioners in question had been guilty of serious professional misconduct were set aside just because the Committee failed to take account of their previous unblemished practising career. Given the role of the Board in appeals from the Committee, it was not open to the legal assessor or the Committee in the present case, to ignore it. This explains the advice of the legal assessor, and the approach of the Committee in the present case.[43]It seems clear to us that the approach of the Board in Rao as apparently followed in Silver was based on a misreading of its earlier decision in Preiss, and that Preiss itself demonstrates that the issue of culpability and mitigation are distinct. That is consistent with our reading of rule 28. The judgment whether proved or admitted conduct amounts to serious professional misconduct is a separate question from evidence in mitigation, which arises from consideration by the Committee after it has made the appropriate finding of serious professional misconduct. The issues are addressed sequentially in the rules, and they should be decided sequentially. The fact that in some cases there will be an overlap, or that the same material may be relevant to both issues, if they arise, does not justify treating evidence which is exclusively relevant to personal mitigation as relevant to the prior question, whether serious professional misconduct has been established.[44]The complainant in the present case, dissatisfied with the decision of the Committee, has argued that its approach was wrong in principle. Having analysed the judgments in Rao and Silver and the misreading of the earlier decision in Preiss, we have respectfully concluded, that the personal mitigation advanced in the present case, in particular Dr Birkin’s “unblemished medical practice”, and the outstanding testimonials which showed that he was a highly committed caring and professional doctor, were not relevant to the question whether his treatment of Michael Boyle and Amy Tasker should properly be described as serious professional misconduct. We respectfully agree with Dame Janet Smith that to the extent that they decided that evidence exclusively relevant to personal mitigation could be considered by the Committee when deciding whether serious professional misconduct was proved, the decisions in Rao and Silver were wrong. Although the Committee is not to be criticised, it misdirected itself in law, and accordingly, the decision in this case was flawed.[45]We shall deal briefly with the original ground of appeal, insufficiency of reasons. In our judgment once the Committee had decided the primary facts, its reasons were terse. Nevertheless, the specific findings of fact explained their decision. They concluded that there was misconduct, in the sense that Dr Birkin’s treatment of Michael and Amy fell below the appropriate professional standard. After taking into account his earlier distinguished career and glowing testimonials, and the particular responsibilities he carried on the Isle of Man, his conduct could not properly be castigated as serious professional misconduct. Rather than repeat the whole of the judgment of Silber J, using different language, we have concluded that his judgment fully explains why the “reasons” attack on the decision of the Committee should fail.[46]We would summarise this judgment by saying:(1) professional conduct committees should first determine in accordance with Rule 27(2) whether the conduct, which is found to be proved or admitted, is insufficient to support a finding of serious professional misconduct;(2) if they conclude that the facts proved or admitted are not insufficient for that purpose, they should then proceed to consider whether the relevant facts constitute serious professional misconduct; although the same material may sometimes be relevant to both questions, they should keep separate in their minds matters going to proof, or otherwise, of serious professional misconduct and matters going to personal mitigation;(3) although, they can, if they think it right to do, consider the circumstances in which the practitioner found himself when committing the relevant misconduct, they should always be alert to the possibility that such circumstances may be more properly relevant to the question of penalty rather than to the question whether the professional misconduct was serious; in particular committees should not use personal mitigation to downgrade what would otherwise amount to serious professional misconduct to some lesser form of misconduct;(4) at this stage, the number and strength of the practitioner’s testimonials will almost invariably be irrelevant; they will usually be relevant to the question of the appropriate penalty;(5) only when the committee has decided whether the practitioner was guilty of serious professional misconduct, should they proceed to make a direction in relation to penalty pursuant to Rules 30 and 31.

Remedy

[47]It was accepted by both sides during the hearing of the appeal that, if it were successful, the decision of the Committee should be quashed and the case remitted for a redetermination. Having decided that the appeal should be allowed on the basis not of the original grounds – the “reasons” argument – but on the basis that the application by the Committee of Silver v GMC produced a decision which was legally flawed, we reflected carefully whether an order for a rehearing would be the appropriate and just way in which to exercise the discretionary power of the court.[48]We therefore sought further submissions from both sides whether declaratory relief would be appropriate and sufficient. The parties were sent copies of the judgment on the substantial issue, and invited to make submissions in writing.[49]We have received these submissions, and examined them. In fairness, we also offered Dr Birkin the opportunity to make submissions about the consequences which should flow from the successful appeal. He did not do so.[50]On behalf of the GMC it was submitted that on examination of the reasons for the successful appeal, declaratory relief would indeed be appropriate. On Ms Campbell’s behalf, the contrary was suggested, on the basis that the normal outcome in cases such as these would be for the decision of the Committee to be quashed and remitted. Reference was made to R v GMC ex p. Toth [2000] 1 WLR 2209 and GMC v Spackman [1943] AC 627. It was suggested that the GMC had not been able to point to any authority involving a medical practitioner still in practice in which a decision not to remit for redetermination had been made. However, as we have explained, the jurisdiction exercised in the present case was most unusual. In R (A) v GMC [2004] EWHC 880 Admin, the only previous known case of proceedings by way of judicial review from a decision of the Committee to acquit the medical practitioner, the application was refused. Charles J declined to make a declaratory order, but it was not in doubt that he had jurisdiction to do so, if the declaratory relief had been appropriate. That case is different from the present, because Dr Birkin is still in practice, whereas the practitioner in R (A) had apparently ceased practice. However it is at least implicit in R (A) that declaratory relief may provide an appropriate and sufficient remedy where a patient has made a successful application for judicial review. This conclusion is consistent with ordinary principles, and unsurprising. It is open to the court to grant a remedy by way of declaration.[51]In Bolton v Law Society [1994] 1 WLR 512, this Court was entirely satisfied that the Divisional Court should not have interfered with the decision of the Solicitors’ Disciplinary Tribunal that the solicitor in question should be suspended from practice for two years. It would therefore have restored the order of the Tribunal. Nevertheless, in view of the lapse of time, and the fact that the order of suspension had never taken effect, it was decided that it would be “oppressive” to reinstate the order of the Tribunal. In essence, the remedy provided by the court should be case specific.[52]The errors which gave rise to the proceedings against Dr Birkin were made in 1998 and 1999, the last virtually 6 years ago. Neither Dr Birkin, nor his advisors, contributed to the flawed decision of the Committee which, as already emphasised, loyally and rightly followed the principles adumbrated by the Privy Council. If a rehearing were ordered Dr Birkin would be exposed to what we may properly describe as double jeopardy. Having once been acquitted of serious professional misconduct, he would once again be required to defend himself against the charge. That consideration would not necessarily be conclusive, but it is a factor in the exercise of discretion which is reinforced by the further consideration that medical practitioners who have themselves benefited from the Committee’s misunderstanding and consequent misapplication of the relevant legal principles would not be similarly exposed.[53]Our attention was not drawn to any practical benefit which would inure to either infant if (and we emphasise that we do not know what the outcome of any fresh hearing would be) it were concluded that the errors made by Dr Birkin in 1998 and 1999 did in fact amount to serious professional misconduct. As far as we can ascertain their claims for damages for the consequences of Dr Birkin’s negligence were and are not dependent on any further and additional judgment that his proved errors amounted to serious professional misconduct.[54]The major potential prejudice consequent on a declaratory judgment drawn to our attention on Ms Campbell’s behalf arose from the fact that if a medical emergency involving her children were to arise, Dr Birkin, as one of the only two consultant paediatricians on the Isle of Man, would be responsible for their care and treatment. It is suggested that the absence of a final conclusion whether Dr Birkin was guilty of serious professional misconduct would be inimical to a successful doctor-patient relationship. We have carefully considered this argument. As it seems to us, the present, inevitably strained, relationship between Ms Campbell and Dr Birkin will not be improved merely because, after a rehearing in which many of the same issues would be re-ventilated, it were decided that he had, or for that matter had not, been guilty of serious professional misconduct. We see no reason to believe that if Dr Birkin were required to treat Ms Campbell’s children hereafter he would somehow act less than professionally towards them, or that the quality of their treatment would be enhanced if he were found guilty of serious professional misconduct at a rehearing. At the same time, Ms Campbell’s confidence in him would be unlikely to increase merely because, at a subsequent hearing, the Committee were to conclude that his treatment of Michael constituted serious professional misconduct.[55]As to Dr Birkin, he is fully aware of the respects in which his treatment of Michael (and Amy Tasker) was found to be have fallen below acceptable standards. His errors have been examined, the Committee’s adverse findings against him publicly recorded, and the findings under rule 27 of the admitted or proved errors remain. Declaratory relief will not expunge them.[56]The simple fact of this litigation is that Ms Campbell’s stand has been vindicated. Her complaint that Dr Birkin’s treatment of Michael fell below the requisite standards has been established. If further complaints arising from any conduct subsequent to the matters examined by the Committee were made against him, the errors established in these proceedings would almost certainly fall to be taken into account as part of his previous professional history, whoever the patient, but particularly so if any further complaint were brought by Ms Campbell or Mr and Mrs Tasker on behalf of their children. Although her appeal against the decision of the Committee was unsuccessful on the original grounds advanced on her behalf, Ms Campbell has also successfully demonstrated that the decision of the Committee was legally flawed, and her efforts have helped to clarify the principles to be adopted by the Committee when considering the complaints brought before them on behalf of patients. Declaratory relief will demonstrate that her stand was indeed fully vindicated.[57]We have taken note of, but do not decide the outcome on the basis of the difficulties drawn to our attention by the Committee about the organisation of a rehearing. Considerations such as these may be relevant in a different case, but they have had no impact on this decision.[58]In our judgment, the interests of justice overall do not require a redetermination of this case. And accordingly we shall not order it. Declaratory relief will provide the appropriate remedy. We invited counsel to agree the terms of the order which would properly express the effect of this decision. A declaration in the following agreed terms will be made:
“The Professional Conduct Committee erred in law in taking into account the personal mitigation advanced by Dr Birkin (namely, his “unblemished medical practice” and personal testimonials) in deciding whether he was guilty of serious professional misconduct. That evidence was relevant only to the question of sanction, following a finding of serious professional misconduct.”

ORDER

Appeal allowed; Respondent to pay 75% of Appellant’s costs. (Order does not form part of approved Judgment)

Cited in 40 later judgments

and 31 more of the most senior