Biswas v General Medical Council [2003] EWHC 2342 (Admin)

Case No CO2682/2003[2003] EWHC 2342 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday 16 October 2003
Strand,
London, WC2A 2LL
Before
THE HONOURABLE MR JUSTICE WALL
Between
DR UMAPATI BISWASClaimantTHE GENERAL MEDICAL COUNCILDefendant
(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)
Mr Anthony Jennings QC (instructed by Messrs O’Keeffe Solicitors) for ClaimantMr Thomas Kark (instructed by the Legal Department of the General Medical Council) for Defendant
JudgmentMr Justice Wall :
[1]This is an appeal by Dr. Umapati Biswas (the Appellant) brought pursuant to Section 40 (1) of the Medical Act 1983 (as amended) against the determination of the Professional Conduct Committee (the Committee) of the General Medical Council (the GMC) made on 12th May 2003 that the appellant was guilty of serious professional misconduct and that his name should be erased from the Medical Register.[2]The hearing before the Committee took place over 6 days between 1 and 12 May 2003. The Appellant was represented by junior counsel. The charges against him related to complaints made by three patients, Mrs. FG, Ms B and Ms C. In relation to each patient, the allegation was that the Appellant’s behaviour was inappropriate, uncaring and discourteous. However, in relation to Mrs. FG, the charges went much further. In her case it was alleged that the Appellant had not only been untruthful, but that he had also abused his position as a medical practitioner and acted dishonestly with a view to protecting himself from the consequences of his actions.[3]The Committee found all the charges proved in relation to all three patients. For the purposes of this appeal, however, Mr. Anthony Jennings QC, for the Appellant, submits that if I were to be satisfied that the principal thrust of the Committee’s determination in relation to Mrs. FG was erroneous, the allegations in relation to Ms B and Ms C did not amount to gross professional misconduct, and the appeal should be allowed. By like token, Mr. Jennings accepted if I was satisfied that the Committee had come to a proper conclusion in relation to the complaint by Mrs. FG, then the appeal would fall to be dismissed, irrespective of any consideration of the cases of Ms B and Ms C.[4]Mr. Tom Kark, for the GMC, was content to proceed on this basis. As a consequence, the argument on the appeal related solely to the Appellant’s behaviour in the case of Mrs. FG.

The charges in the case of Mrs. FG

[5]In his helpful Respondent’s Notice, incorporating his skeleton argument, Mr. Kark summarised the charges and the Committee’s findings in relation to them. I gratefully adopt Mr. Kark’s summary which, I think, is not contentious. I will first of all set out the charges, and then examine the evidence in relation to those of them where it is contentious.. Head of Charge(1) At all material times you were working as a General Practitioner at 144 Grove Lane in Camberwell, London and at Dulwich Hospital; This was admitted by the Appellant and found proved by the committee. Head of Charge(2) On 1 January 2001 Mrs F G brought her baby M (female) to you for examination at Dulwich Hospital; This was admitted by the Appellant and found proved by the committee. Head of Charge (3a) Mrs FG indicated that M was not feeding properly and had a chest condition, Head of Charge (3b) You examined M’s chest and told Mrs FG that there was nothing wrong with her chest, Head of Charge (3c) You prescribed Electrolyte powder to M; (3a-c) above were admitted by the Appellant and found proved by the committee. Head of Charge (3d) You indicated to Mrs FG that M would be fine (words added by committee) - if she took more fluid; Head of Charge (4) Mrs FG asked whether she could fly to Hamburg with M the following day and you did not indicate any concern about that course of action; Heads of Charge 3(d) and 4 were found proved as amended by the committee. Head of Charge (5a) Between 16th January 2001 and 12th February 2001 you received a letter of complaint written by Mrs FG relating to your examination of M, This was admitted by the Appellant and found proved by the committee. Head of Charge (5b) On 12th February 2001 you wrote to Mrs FG indicating that you had on 1st January, advised her not to fly back to Germany with M unless things were improving, This was admitted by the Appellant and found proved by the committee. Head of Charge (5c)– You had not in fact tendered such advice. Head of Charge 5 (c) was found proved by the committee Head of charge (6) originally read as follows – (6) On or about 1 March 2001 you contacted the German Embassy in London informing them that (a) when you had examined M on 1 January 2001 she had been in a ‘bad state’; (b) M had been suffering from dehydration (c) Mrs FG had not followed medical advice she had been given; and (d) that the case deserved investigation; Heads of charge 6 (c) and (d) were admitted and found proved. Head of charge 6 (a) was amended on application by the General Medical Council on 7th May 2003 so that as amended it would read – (6) - On or about 1st March 2001 you contacted the German Embassy in London informing them that (a) when you examined M on 1st January 2001 (i) she had been in a bad state; (ii) neglected by her mother. Heads of Charge 6(a)(I) and (ii) and 6(b) were found proved Head of Charge 7 alleged – As a result of your actions the German Embassy contacted the Child Protection Authorities in Hamburg who then investigated your complaint. Head of charge (7) was found proved. Head of charge (8) alleged – Your actions as described in paragraphs five and six above were motivated by a desire to protect your own position and, to your knowledge, did not reflect the true state or affairs in relation to your examination of M and the advice you had tendered to Mrs F G; (The substance of this complaint was that the Appellant had contacted the German Embassy after he had become aware that Mrs F G was continuing her complaint against the Appellant and had written a further letter dated 17th February 2001. The suggestion was that he had done so in order to try to protect his own position.) Head of Charge (8) was found proved. Head of Charge (9) alleged – Your actions as described were (a) inappropriate; (b) deliberately misleading; (c) an abuse of your position as a medical practitioner; (d) a failure of your duty to your patient; Head of Charge 9 was found proved.

The principal issues of fact in the case

[6]In relation to Mrs. FG, there were two principal issues of fact which the Committee had to resolve. The first was whether or not, as Mrs. FG alleged, the Appellant had told her he saw no reason why she should not fly to Hamburg the following day with M. The second was what the Appellant had said when he spoke to Herr Herbert Schenk, then Third Secretary in the Consular Section of the German Embassy in London over the telephone on 1 March 2001.[7]In summary, the Appellant’s case was that when he spoke to Herr Schenk he was reporting legitimate concerns which he had discovered since his examination of M on 1 January 2001. Those concerns, he told the Committee, arose from his receipt of the first letter of complaint written by Mrs. FG. He thought “the child needs a bit of extra help; not only the child, I think the child’s mother as well” (evidence, day 3 page 39 at B). Herr Schenk’s evidence was that in the conversation on 1 March 2001 the Appellant was describing concerns which he had had on 1 January 2001[8]The conversation between the Appellant and Herr Schenk went to the heart of the case. It took place in English. Herr Schenk, however, naturally reported the complaint to the relevant German authorities in German. The word he used to identify M’s condition as described to him by the Appellant was the German word “verwahrlost”. The evidence before the Committee was that there is no direct, one word translation of this word in English. The nearest the English language comes to it is “neglected”. The question for the Committee, accordingly, was whether the Appellant, as he alleged, was describing what he perceived had happened to the child over time, or whether he was describing the condition of the child on 1 January 2001. In other words, had the child appeared neglected on 1 January 2001, or had she become neglected by 1 March 2001, when the Appellant contacted the German Embassy?[9]Mr. Jennings put the point eloquently when he said that his client’s name had been erased from the Medical Register because of a mistake about the translation of a word and the tense of a verb arising from a conversation between two people neither of whom had English as a first language. The case for the GMC was that the Appellant was attempting, by dishonest means, to protect himself from a legitimate complaint by attacking the credibility and maternal competence of Mrs. FG. In order to assess these arguments, it is necessary to look more carefully at the evidence before the Committee.

The chronology of events

[10]The chronology of events is important in this case, and I will set it out. 1 January 2001 Mrs. FG takes M to see the Appellant at Dulwich Hospital 2 January 2001 Mrs. FG, her husband and M fly to Hamburg. M is ill and is taken to hospital where she is admitted and kept in until 9 January 2001 16 January 2001 Mrs. FG writes her letter of complaint about the Appellant to the Fitness to Practice Clinic of the GMC 5 February 2001 Mrs FG’s letter received by the Appellant 12 February 2001 Appellant replies to Mrs. FG’s letter 17 February 2001 Appellant writes a further letter to Seldoc at Dulwich Hospital maintaining her complaint. 26 February 2001 Appellant telephones International Social Services (ISS) in the UK. ISS (UK) send the Appellant its Referral Guide asking the Appellant to complete and return a case summary. Referral will be sent to ISS (Germany) for translation and onward forwarding to M’s local Youth Welfare Office 27 February 2001 Seldoc forwards Mrs. FG’s letter of 17 February to the Appellant 1 March 2001 Appellant speaks to Herr Schenk at the German Embassy 2 March 2001 Herr Schenk sends a Fax to the Hamburg Child Protection Agency relating the substance of the conversation of 1 March 2001 13 March 2001 Mrs FG visited in Hamburg by the German authorities

The Consultation on 1 January 2001 and the Appellant’s advice about M flying

[11]I will deal, firstly, with the issue between Mrs. FG and the Appellant in relation to whether or not it was safe for Mrs. FG and M to fly to Hamburg on the following day.[12]The only document relating to the consultation on 1 January 2001 is a one-page form produced by Seldoc. This records the initial details of Mrs. FG’s call, and her conversation over the telephone with one of the duty doctors. That doctor advised bringing the baby into the hospital. There is then a space on the form for the interviewing doctor’s notes. On the form, in the space headed: “Clinical notes”, the Appellant has written: - Live in Germany. Bottle fed. Dry cough. Advised mother to feed milk / electrolade 30 mls every half hourly[13]The space on the form for diagnosis is left blank and the space for “Drugs Prescribed” has been completed with the words “Electrolade Sachets x 10”. The space for “Special / Follow up Messages” is left blank. The only other words written on the form in the Appellant’s writing are somewhat ambiguous. In the space in which the receptionist appears to have completed the initial call by typing the words “Not taking feed properly”, the Appellant has written “Mother do not feed this baby properly”. In evidence, the Appellant said of this entry: - In that context, it was my idea, because I thought she must have some difficulties to feed the baby, and that is what I was getting concerned about. But still I thought, obviously, what was I suggested, if she would do it with patience and give some time and give that, then it would be better. That was the reason I put that. The next thought that comes is that probably she needs some extra help to look after the baby.[14]In relation to this point all that needs to be said, I think, is that the evidence shows clearly the only reason Mrs. FG had difficulty feeding M was because M was ill. It had nothing to do with Mrs. FG’s lack of mothering skills. The Appellant specifically accepted in cross-examination that Mrs. M struck him as a concerned mother, anxious because her baby was not feeding properly.[15]Mrs. FG was very clear in her evidence to the Committee, and did waver in cross-examination. She had said to the Appellant:
“We are due to fly back to Hamburg tomorrow, do you think that’s OK to do?”
The Appellant had replied “I don’t see any reason why not”. She said that had the Appellant indicated any concern about flying, she would not have travelled. She, her husband and M were flying on tickets provided by her husband’s company: they were readily changeable.

Events in Hamburg and the letters of complaint

[16]What happened when Mrs. FG arrived in Hamburg with M is important. By the time they arrived on 2 January 2001 it was already too late to visit the doctor within normal surgery hours. The baby was weak and floppy. Mrs FG and her husband were extremely worried about her. She rang the Hamburg out of hours doctor service and was advised to take M to hospital immediately. M was seen very quickly and kept in. On the following day she was diagnosed as suffering from peribronchial pneumonia, and chronic bronchitis. She was detained in hospital until 9 January 2001.[17]It is not part of the case against the Appellant that he failed to diagnose M as suffering from pneumonia and chronic bronchitis. M’s admission to hospital in Hamburg is relevant, however, both to the Appellant’s evidence about Mrs. FG being a mother who needed help with the care of her child, and, consequentially whether his reporting Mrs. FG and M to the German authorities reflected genuine concerns about her capacity to care for M.[18]Mrs. FG’s first letter of complaint is dated 16 January 2001. It is addressed to the Fitness to Practice Directorate of the GMC, and copied to Mrs. FG’s MP. It makes a number of complaints. It is a clear and coherent letter. The Appellant’s advice in relation to flying is stated clearly in two places.[19]Mrs. FG’s letter was forwarded to the Appellant. He received it on or about 5 February 2001. He replied directly to Mrs. FG on 12 February 2001. On the question of flying, he wrote: - I believe I told you that you would watch her to see how much more fluid she was able to take and that you should not fly back to Germany unless you were sure things were improving. I believe my advice was appropriate at the time I saw M and apologise again if there was any misunderstanding.[20]Mrs. FG was not satisfied with the Appellant’s response. On 17 February 2001, she wrote to Ms Sue Jenkins of Seldoc at Dulwich Hospital. The letter repeats her stance on the Appellant’s advice about flying. As I have already indicated, Mrs FG’s evidence on the point was consistent throughout.[21]Before the Committee, the Appellant’s evidence in chief (Day 3 p 34) was that when asked if the baby would be all right to fly the next day, he had replied: It entirely depends on how the baby would be tomorrow by means of taking fluid, how its condition would be. If its condition is better, yes, it can: if it is not, you have to think, you have to decide” In cross-examination, the Appellant maintained that stance.[22]Evidence was also given on the point by Dr John Toby, a general practitioner called on behalf of the GMC. Mr. Jennings relies on that evidence. Dr Toby was asked that if there had been no indication of dehydration would he have advised that the baby could fly. Dr Toby had said: “I cannot really answer that without a lot more information but had the child appeared in generally good condition and there being no other problems then I would certainly have said yes, I think the child can fly, but I think it is really a question of a judgment about the general condition of the child which makes it slightly difficult to answer your question directly” (Transcript for day 2 at pp55 E-F). In cross-examination Dr Toby had been asked: “If, however, you are not concerned about dehydration, then flying is a reasonable option? He had answered: Depending on the general condition [of the child], yes”: - see transcript for day 3 at p 3c.[23]On this basis, Mr. Jennings submits that the Committee gave insufficient weight to the extent to which there was little difference between the evidence of Mrs F G and the Appellant. He also submitted that the Committee gave insufficient weight to Dr Toby’s evidence in respect of advice in relation to flying. He submitted that these failings amount to an error in law.[24]I am unable to agree with this submission. The Committee was faced with two accounts. It had to choose between them. For Mrs. FG it was an extremely important question. Her evidence on it was clear and consistent. It was, moreover, clear that she had acted on the advice she says the Appellant gave her. Mrs. FG’s evidence is also consistent with the Appellant’s assessment of the baby’s condition as recorded in the clinical note. The baby was not dehydrated. There was no diagnosis apart from the fact that the baby was feeding properly and had a dry cough. The Appellant said in terms that he did not have any serious concerns about the baby on 1 January 2001 (Transcript Day 3 p 36). The Committee was, in my judgment, fully entitled to accept Mrs. FG’s account, and cannot be said to have erred in law in doing so. On any view there was abundant material on which it could so find.

The contact with the German embassy

[25]The conflict of evidence over the question of the baby flying was not, of course, the only issue over which the Committee made adverse finding against the Appellant. As Mr. Jennings accepted, by far the most serious allegation against the Appellant related to his conduct in contacting the German Embassy. I need therefore to examine this in some detail.[26]It is clear from the chronology that on 26 February 2001, the Appellant telephoned International Social Services in London. He also gave evidence, that after the receipt of Mrs. FG’s first letter of complaint he had spoken to social services in the United Kingdom and the information department of the German Embassy. He does not, appear, however, to have followed any of these matters up. Instead, on 1 March 2001, he telephoned the German Embassy and spoke to Herr Schenk. By then, he had received Mrs. FG’s second letter in which she made it clear that she was dissatisfied by the Appellant’s explanation, and was maintaining her complaint.[27]Herr Schenk gave evidence to the Committee. From the transcript, it appears that he speaks excellent English. Mr. Kark has extracted the relevant parts of Mr. Schenk’s evidence to the Committee. The Committee also had before it the FAX which Herr Schenk had sent to the Hamburg Youth Welfare Office on 2 March 2001. Herr Schenk had made a note of the conversation with the Appellant, but had destroyed it once he had sent the FAX. Herr Schenk’s translation of the FAX reads as follows: - The Embassy was informed 1 March 2001 by a Dr. Biswas GP, Camberwell Hospital, London, that on 1 January 2001(!) a child – an infant, MG, born 2 September 2000, was treated by him and he had discovered that it was neglected and suffers from dehydration. The mother is Mrs. FG (address in Hamburg given) was on a visit in London. The mother had not followed the medical advice, and he thinks it needs investigation. On my question why he phones me now after two months and not before, he said that he has tried to contact the German authorities directly to inform them but he was not successful. Now he had got a hint that the German Embassy could forward this information.[28]The FAX, which is plainly a contemporaneous document equally plainly represents how Herr Schenk understood the information he was being given by the Appellant. He maintained that stance throughout his evidence. This is what he said in chief I was on duty and I have got a telephone call and the person on the other end explained that he was a GP, Dr. Biswas, and that he had treated a child, that it was in a bad state and that the mother was neglecting the child and the child was suffering dehydration and it needs further investigation. When I asked him why he contacted the German Embassy he said that mother and the child were living in Hamburg and they were on a visit in London. They were English, or British, I am not sure, and they were on a visit here and he had seen the child and had advised the mother for certain treatment and that she did not follow the advice of the doctor, Dr Biswas, and then I asked him when that was the case, the time, and he said that was on New Year’s Day and I was quite astonished because it was two months later. I asked him why he did not contact us earlier and then he said that he had tried to inform the German authorities in Hamburg directly but he failed to get in contact or get any response.[29]All that, of course, is entirely consistent with the FAX. The critical issue, however, is the point in time at which the Appellant was reporting to Herr Schenk that he believed M to be neglected (verwahrlost). Mr. Schenk took it to be 1 January 2001, hence the exclamation mark in the FAX and the surprise recorded in his evidence. The Appellant’s case, however, was that he was talking about a later date, which post-dated his receipt of Mrs. FG’s letter of complaint.[30]Mr. Jennings relied on the words in the FAX “dass es (M) verwahrlost sei”. As I have already indicated, the nearest translation of “verwahrlost” is “neglected”. The following extract from Herr Schenk’s cross-examination is material (Day 1 page 38): - Q He told you that he treated the child on 1 January? A That is right. Q Full stop. All right? A Yes Q He told you that he had discovered that the child was neglected – A Yes Q - or may be neglected and may be dehydrated A Not “may” be Q Was dehydrated A Yes Q You have assumed that he is there referring to the time he saw the child on 1 January? A Definitely, because I asked him when, and he said on 1 January he had seen the child and I asked him why I get the information that late Q I do not think I can take this any further, but the translation therefore is this – just one final time so I get it right. It is just this first part of your letter which is important from my point of view:
“On 1 January 01 (!) the child MG – date of birth – “was treated by him”, “and he has discovered that it (the child) was neglected and dehydrated”
. A Yes Q And that is a fair translation? A That is a fair translation, yes. Herr Schenk was later recalled, but the effect of his evidence remained the same.[31]The Appellant’s evidence on this point was that he had been “very shattered, very shocked, very sad” to receive Mrs. FG’s letter of 16 January 201. He was also very worried about the prospect of a complaint to the GMC. He was asked, in examination in chief: Q Were you worried about the child? A That very moment I worried about the child; I think the child needs a bit of extra help; not only the child, I think the child’s mother, as well[32]In his evidence in chief, the Appellant gave the following account of his telephone conversation with Herr Schenk (evidence day 3 page 44): … First I said, as usual, “Hello, good morning. I am Dr. Biswas. I am the local GP in Camberwell area. I am a bit concerned about a baby and I need some help from you and your operative. Then he said:
“What is it about? I said: “I work as an emergency doctor in my local service and I have seen a baby three months old and the child was ….. And the following day when I give some instruction to the mother about the treatment and mother get back to Germany following day and then the child was end up in hospital. So I was getting worried about that, the child and the mother. They he said: “You saw the child on 1st January and you are phoning me on 1 March. It is two months later”. “Well yes it is maybe two months later, but it is just ….It took some time in between the various channels and that was the reason”
. So that was the things I told him. That was the reason why this time gap was.[33]In cross-examination, as I have already stated, the Appellant accepted that Mrs. FG was a concerned mother. There was no evidence of M having been harmed. There was no evidence of dehydration. However, the Appellant repeated that it was reading Mrs. FG’s letter, and the fact that M had become so ill within 24 hours that started him thinking that both M and her mother needed some sort of help from social services. When asked what part of the letter it was that led him to that view, he referred to M’s condition, and the fact that she had had to be admitted to hospital immediately on her return. “It should not go like that”, he said. “I must do something to generate local help so that mother and child should get it. Here I must remember that the child’s safety, or patient’s safety, is first at any cost”.[34]I need not, I think, give any further extracts from the Appellant’s lengthy cross-examination. Mr. Jenning’s submission on this part of the case relied substantially on the terms of the conversation between Herr Schenk and the Appellant. It was the Appellant’s case that he was passing on to Herr Schenk his concerns as a result of what he had learned from Mrs FG of what happened to M subsequent to 1 January, 2001.[35]Mr. Jennings submitted that the Appellant’s account was supported by four matters. The first was the translation of the FAX. The second was what Herr Schenk said about the word verwahrlost in evidence. The third was the fact that no suggestion of neglect is made in Dr Biswas’ clinical notes which he must have known would be examined in any subsequent investigation. The fourth was the Appellant’s letter to Mrs FG on 12 February, 2001, which was sent before he contacted the German Embassy, and which stated that when he examined M on 1 January, 2001 there was “no sign of dehydration at that time”.[36]Mr. Jennings submitted that on the basis of this material there was insufficient evidence to justify the conclusion that the Appellant’s complaint to Herr Schenk related to the examination of January 1, 2001 as opposed to concerns that arose since the original examination. He submitted that in view of the above the Committee should not have been satisfied on the evidence of Herr Schenk.[37]As to the remaining heads of charge in relation to Mrs. FG (that is to say, (7) (8) and (9), Mr. Jennings submitted that it was now clear from the Appellant’s telephone records that the Appellant was in contact with the International Social Service of the United Kingdom from 23 February 2001. There was certainly a letter from ISS dated 26 February 2001 which referred to a telephone call that day. There were also a number of calls to ISS between 23 February, 2001 and contact with the German embassy on 1 March, 2001.[38]The Committee made two findings on this part of the case. Firstly, it found that the Appellant had misrepresented the position to Herr Schenk. He had been talking about the state of M on 1 January 2001, and what he said to Herr Schenk about her condition on that day had been untrue. Secondly, however, his contact with Herr Schenk was not to protect the position of M, or to offer help to Mrs. FG and M, but was motivated by a desire to protect his own position against Mrs. FG’s complaint.[39]In my judgment, the findings identified in the preceding paragraph were findings which it was open to the Committee to make. It was plainly entitled to accept Herr Schenk’s evidence, corroborated as it was by the FAX send on 2 March 2001. The case does not turn on the meaning of verwahrlostand the tense of the accompanying verb. The Committee was entitled to find that the Appellant gave Herr Schenk a deliberately false account of M’s condition on 1 January 2001, and that his motivation in doing so was an attempt to discredit Mrs. FG, who had made a legitimate complaint against him.[40]I can detect no error of law in the Committee’ conclusion. Even on his own case, the Appellant had no good reason to report M and Mrs. FG to the German authorities. There is nothing in either of Mrs. FG’s letters which would warrant such a reference, and the report from the University Hospital in Hamburg not only gives a coherent medical explanation for M's condition, but demonstrates that as soon as she had returned to Germany, Mrs. FG had sought medical advice for M, who had been appropriately treated in hospital, and was plainly being properly cared for. Mrs. FG was equally entitled to be “gob-smacked and absolutely outraged” (Transcript, day 1, page 22) at the unannounced visit of the German social services investigating a complaint that she had neglected her child.[41]The Committee’s finding that the Appellant’s actions were motivated to protect his own position was not only open to it, but in my judgment was the only finding it could reasonably make on the facts as presented to it.[42]In these circumstances, Mr. Jennings does not seek to address me on the question of serious professional misconduct or penalty. As already indicated, I do not need to consider the complaints of the other patients. It follows that the appeal will be dismissed.