Rajan v. The General Medical Council (Medical Act 1983) [2000] UKPC 1

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 18 of 1999Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL
Between
RajanAppellantThe General Medical Council (Medical Act 1983)Respondent
Before
Lord Nicholls of BirkenheadLord SteynLord HuttonDate 19 January 2000
[1]This is an appeal by Dr. Karikkassery Thomas Joseph Rajan against the decision of the Professional Conduct Committee of the General Medical Council on 14th April 1999 finding:-(1) That the charges against him in relation to two women patients, Ms.a. A. and Ms. B., were proved (with the exception of the matter alleged in paragraph 3 c iii in relation to Ms. B). The charges were as follows:- "That, being registered under the Medical Act, 1. On 17 June 1996 you were consulted by Ms ‘A’. 2. a. During the course of the consultation, you performed a breast examination on Ms ‘A’.b. i. You did not offer Ms ‘A’ the opportunity to have a chaperone present, ii. You did not explain the purpose of the examination to Ms ‘A’ iii. You did not seek or obtain Ms ‘A’s’ consent for the examination,c. Your examination was performed i. Improperly, ii. Inappropriately; 3. a. On 20 August 1997 you were consulted by Ms ‘B’, b. During the course of the consultation you performed a chest examination on Ms ‘B’, c. i. You did not offer Ms ‘B’ the opportunity to have a chaperone present, ii. You did not explain the purpose of the examination to Ms ‘B’ iii. You did not seek or obtain Ms ‘B’s’ consent for the examination, iv. A chest examination was not clinically indicated.d. Your examination was performed i. Improperly, ii. Inappropriately,e. At the conclusion of the consultation you kissed Ms ‘B’."(2) That in relation to the facts proved against him he was guilty of serious professional misconduct; and(3) that his name should be erased from the medical register; and(4) that with immediate effect his registration in that register should be suspended.[2]Their Lordships propose, for reasons which will appear, to consider first the finding of the Professional Conduct Committee that the charge in relation Ms. B. was proved.[3]Dr. Rajan carried on a single practice as a general practitioner in Laindon West in Essex. It was common ground that Ms. B. became a patient with his practice in July 1997. It was also common ground that she had her first consultation with him on 25th July 1997 and a second consultation on 31st July 1997, and on both occasions she complained of depression and Dr. Rajan prescribed anti-depressant tablets.[4]At the hearing before the Professional Conduct Committee Ms. B. said in evidence that she attended for a third consultation with Dr. Rajan in order to obtain a further supply of anti-depressant tablets. She said that in those three consultations there was no physical examination, but that at the end of the second and third consultations Dr. Rajan stood up from his chair and leant across the desk to her and kissed her on both cheeks.[5]Ms. B. further said in evidence that she had a fourth consultation with Dr. Rajan in his surgery which she thought was about 20th August 1997, and she had made the appointment in advance. She went to see him because a few days before she had been depressed and had had "a very bad rage". She explained in her evidence that she had mood swings very quickly and would either try to hurt herself or else hit her boyfriend. When she went into his consultation room to see Dr. Rajan she told him about her "rage". The doctor stood up, came round the desk and said:
"I am going to check your heart"
. She remained sitting on a chair and he stood behind her right shoulder holding a stethoscope. He tested one or two places on her chest with the stethoscope, and then he put his hand inside her brassiere down to her nipple, picked the actual nipple up with his fingers and then put the stethoscope straight on top of the nipple, and the stethoscope remained there for three or four seconds. The doctor then went back round to his side of the desk. When asked if the doctor gave her any advice after he examined her she replied:
"Possibly just - when he spoke normally, it was quite calming, but it was nice to talk to somebody that did understand"
. The doctor then stood up again, leant across the desk and kissed her on both cheeks.[6]In her letter of complaint against Dr. Rajan to the General Medical Council dated 26th August 1997 Ms. B. specified the date of the consultation of which she complained as being Wednesday, 20th August. In a statutory declaration which she made on 13th January 1998 she gave the date of this consultation as being Wednesday, 24th August, but in her statement of evidence dated 17th February 1999 she said:
"In previous correspondence I have mentioned the date of the 24 August 1997. I have now had the opportunity to check my diary and find that the correct date was in fact 20 August 1997"
. In the letter of 30th April 1998 which informed Dr. Rajan of Ms. B.’s complaint against him the General Medical Council stated that the complaint related to a consultation on 27th August 1997, but it appears that the reference to that date was an error by the General Medical Council.[7]An important part of Dr. Rajan’s appeal to the Board relates to the late disclosure to him and his legal advisers of an entry in Ms. B.’s diary. On 17th February 1999 Mr. John Kathro, an investigator employed by Messrs. Field Fisher Waterhouse, the solicitors to the General Medical Council, took a proof of evidence from Ms. B. Mr. Kathro was aware that there was a discrepancy between the date in her statutory declaration and the date in the charge. When he sought to clarify this point with her, she consulted her diary which showed that the date in relation to which she made her complaint was 20th August 1997. Ms. B. permitted Mr. Kathro to make a photocopy of this page of her diary and her diary was then returned to her with a request that she should bring it to the hearing. Ms. Vaughan Jones, counsel for the General Medical Council, knew before the date of the hearing that a photocopy diary entry was to be produced, and that the original diary was to be brought to the hearing, but she was not given a copy of the entry. She did not see a photocopy of the diary entry for 20th August 1997 until the morning of the hearing when she was shown the photocopied page by Mr. Kathro and she advised that it should immediately be shown to those representing Dr. Rajan. Accordingly, before the hearing began Mr. Kathro made a further copy of the diary page and in the presence of Miss Vaughan Jones gave the copy to the counsel and solicitor for Dr. Rajan. When Ms. B. arrived on the morning of the hearing she did not bring the original diary with her as had been requested.[8]In the opinion of their Lordships the entry made by Ms. B. in her diary for 20th August was relevant and important, because on the first line of the entry for 20th August Ms. B. had written:- "3.40 p.m.- Dr. Rajan".[9]In an affidavit which he swore on 23rd November 1999 in the present appeal proceedings Dr. Rajan avers that his surgery did not open until 4.30 p.m., that his first appointment was at 5.00 p.m., that he had not operated outside those appointment hours and that his receptionists had never opened the surgery for an appointment at 3.40 p.m. Because the copy of the diary entry for 20th August was not disclosed to Dr. Rajan’s legal advisers until the morning of the hearing, with the consequence that the existence of the diary entry that the appointment with Dr. Rajan was at 3.40 p.m., at a time when he did not carry out consultations, was not known to them prior to the date of the hearing, their Lordships have permitted the admission into evidence before them of further affidavit evidence from two former receptionists of Dr. Rajan, who aver that the evening surgery did not begin until 4.30 p.m., and that after 11.45 a.m. (when the morning surgery ended) the surgery closed until 4.30 p.m.[10]After the hearing before the Professional Conduct Committee there was disclosure to the appellant of copies of further entries in Ms. B.’s diary for dates when she attended or allegedly attended his surgery. The entry for 1st August states: "Dr. Rajan: 4.00 p.m.", a time at which, according to Dr. Rajan and his receptionists, his surgery would not have been open.[11]In their affidavits Dr. Rajan and the two former receptionists state that the practice in his surgery as to the keeping of medical notes in relation to a patient was as follows. When the receptionist took an appointment over the telephone she would enter the date of the appointment in the margin of the patient’s medical notes after Dr. Rajan’s entry relating to the last consultation with the patient. She would then put the notes on to Dr. Rajan’s desk prior to the surgery for which the appointment had been made. After he had seen the patient Dr. Rajan would then write his note of the consultation beside the date which had been entered in the margin by the receptionist. Dr. Rajan’s medical notes in relation to Ms. B were before the Professional Conduct Committee. There were notes for the consultations on 25th July and 31st July. Below the note of the consultation on 31st July there is written in the margin by the receptionist: "01/08/97", but there is no note by Dr. Rajan of a consultation on that date. There is no entry whatever in the medical notes in the margin or elsewhere relating to an appointment for, or a consultation having taken place, on 20th August.[12]At the hearing before the Professional Conduct Committee Dr. Rajan’s evidence was that he had no recollection of a consultation with Ms. B. on either 1st August or 20th August, and he sought to defend himself against the allegations made by Ms. B. by referring to the normal and proper practice which he followed when having a consultation with a female patient. Their Lordships observe that when a female patient alleges misconduct against a doctor and the doctor says that he does not remember the consultation and falls back on the proper practice which he normally follows, this line of defence may sometimes appear somewhat unimpressive to the Professional Conduct Committee.[13]In his affidavit Dr. Rajan states that he has no recollection of being shown the diary entry for 20th August 1997 during the course of the hearing on 14th April 1999 and he had no idea that Ms. B. was saying that the appointment was at 3.40 p.m. After Dr. Rajan had waived legal professional privilege the counsel who appeared for him before the Professional Conduct Committee provided a statement in which he states that he has no specific recollection of showing the diary entry to Dr. Rajan, but it was his usual practice to show all relevant documents to a client and to discuss them with him. Therefore their Lordships think that it is more probable than not that counsel did show the diary entry to Dr. Rajan at the hearing but their Lordships also think that Dr. Rajan may not have appreciated the significance of the entry of 3.40 p.m. at the time where it was shown to him.[14]Sir Nicholas Lyell Q.C., on behalf of the appellant, submitted to their Lordships that Ms. B.’s diary should have been disclosed to the appellant on a date prior to the date of the hearing. In particular, he submitted that if the entry for 20th August had been disclosed at an earlier date than the morning of the hearing the appellant would have been in the position to make the positive case, which he now wished to make, that the alleged consultation on 20th August had never taken place and that the allegation by Ms. B. that he examined her breast was a fantasy, as were all the allegations of kissing on the cheek. Therefore Sir Nicholas submitted that the finding of the Professional Conduct Committee was unsafe.[15]Sir Nicholas further submitted that Ms. B.’s psychiatric history strengthened the likelihood that her allegation of the examination on 20th August was a fantasy. Ms. B.’s medical notes showed that she had received treatment for depression on a number of occasions between June 1995 and July 1997. On 17th July 1997 she had a consultation with the female doctor who was then her general practitioner, Dr. Marshall. The notes of Dr. Marshall and of another doctor in practice with her show that on that occasion Ms. B. had a violent hysterical outburst when the advice given by Dr. Marshall was unacceptable to her. An angry noise from Dr. Marshall’s room was such that her partner came to see what was happening and he found Dr. Marshall being threatened by physical and verbal aggression from Ms. B. who was smashing Dr. Marshall’s desk and swearing loudly. Dr. Marshall’s partner advised Ms. B. that her behaviour was totally unacceptable and that he would call the police if necessary. She was eventually persuaded to leave peacefully and was informed that she would be removed from Dr. Marshall’s list. It was after this incident that she first consulted Dr. Rajan on 25th July.[16]Miss Foster, for the General Medical Council, submitted that, in essence, the argument advanced by the appellant on the present appeal was that his case before the Professional Conduct Committee had been incompetently conducted by the counsel who then represented him because that counsel had failed to rely on the diary entry of the 3.40 p.m. appointment in order to make the case that there had been no consultation on 20th August. Miss Foster observed that both the counsel and solicitor representing Dr. Rajan at the hearing on 14th April 1999 were very experienced and competent in representing doctors before the Professional Conduct Committee, and Miss Foster relied on the principle stated in authorities such as Reg. v. Clinton 97 Cr.App.R. 320 that a conviction will not be set aside on the ground that defence counsel made a mistaken decision save in exceptional circumstances or where there has been very serious incompetence on the part of counsel.[17]In the opinion of their Lordships the present appeal by Dr. Rajan is not based upon an allegation that he was incompetently represented at the hearing before the Professional Conduct Committee. Their Lordships consider that, for the reasons already referred to, the entry in Ms. B.’s diary was clearly relevant and material and that under the principle established in cases such as Reg. v. Maguire 94 Cr.App.R. 133 and Reg. v. Ward 96 Cr.App.R. 1 it should have been disclosed to the appellant’s legal advisers on a date well before the date of the hearing, and that the failure to disclose in proper time rendered the finding of the Professional Conduct Committee in respect of Ms. B.’s complaint unsafe, because that failure denied to the appellant and his advisers a proper opportunity to advance a case which might have succeeded, namely, that the examination of which Ms. B. complained had never taken place. Their Lordships desire to make it clear that their decision that the finding was unsafe involves no criticism of the counsel and solicitor representing Dr. Rajan at the hearing on 14th April 1999: the most experienced legal advisers, may, on occasions, fail to make appropriate use of a document handed to them at the last moment just before the hearing begins.[18]The complaint made by Ms. A. related to a consultation with Dr. Rajan on 17th June 1996. Her evidence was that in the consulting room she told him that she had been suffering with hay fever and also that she needed a repeat prescription for a contraceptive pill. Dr. Rajan took Ms. A.’s blood pressure and then said he needed to listen to her heart. He stood behind her as she was seated by the desk, and put his right hand down inside her tee-shirt, holding a stethoscope which he pushed into the left cup of her brassiere. He then pushed his left hand also down the tee-shirt and into the brassiere to lift the breast. When he had listened to her heart, he then squeezed Ms. A.’s left breast and then squeezed her right breast quite hard which caused discomfort at the site of a previous operation to remove a lump. He then wrote a prescription for the contraceptive pill and for hay fever medication. Ms. A. was not offered a chaperone by Dr. Rajan and he did not tell her that he intended to feel her breasts, nor did he ask permission to do so.[19]In his evidence Dr. Rajan said that he was standing in the reception area when Ms. A. came in and asked for an appointment. He explained that there had been an emergency in the receptionist’s home and she had had to return there. He and Ms. A. then went into his consulting room and Ms. A. asked about the pill. It was his normal practice to explain that he had to do an examination before he prescribed the pill. He learned this normal practice during his family planning training and then as a family planning doctor in about 1972. The normal practice was to take the history, and then tell the patient that he wanted to examine her before giving the prescription. He would check the blood pressure, the heart and the breasts. The normal practice on a breast examination would be to explain to the patient what he was going to do, and then if the patient was shy or nervous or if the patient asked for a chaperone, he would call a staff member to come in. On this occasion he could not provide a chaperone and he had told Ms. A. that the receptionist was not there. Because Ms. A. and he were alone in the surgery he decided to examine her with her clothes on. According to his notes he first examined her chest, and then after he had examined her chest he would have done a breast examination. It was his normal practice to ask specifically for a patient’s consent to examine her breasts. He might have forgotten to ask Ms. A. for her consent, but it was his normal practice to do so. He was sure he did not do anything inappropriate and he did not think he had done anything improper.[20]Their Lordships observe that there was an important difference between the complaint made by Ms. B. and the complaint made by Ms.a. A. If Ms.b. B. did have a consultation with Dr. Rajan on 20th August, she consulted him because of her depression and "rages", and therefore there was no reason for him to examine her breast. In relation to Ms. A.’s complaint, Dr. Rajan put in evidence before the Board a document containing information for doctors in relation to oral contraceptions which stated:
"It is accepted that palpation alone has its limitations, nevertheless regular breast examination (at least once a year) should be carried out"
. Their Lordships understand that it is not in dispute that if a female patient asks for a prescription for a contraceptive pill it is not improper for the doctor to examine her breasts, although it appears that there are differing views in the medical profession as to whether such an examination is necessary. It is also not in dispute that as Ms. A. had had a lump removed from her breast it was not improper for Dr. Rajan to palpate the breast at the site of the lump. Therefore the substance of the charge in relation to Ms. A. was that he had not explained to her that he was going to examine her breasts and had not asked for her consent to do so, that he had not offered her the opportunity to return when a chaperone would be present, and that he carried out the examination of her breasts in an inappropriate manner.[21]Their Lordships are of opinion that in considering whether Dr. Rajan had been guilty of serious professional misconduct in respect of Ms.a. A. the Professional Conduct Committee would have been influenced to some extent by the more serious complaint of Ms. B., including the complaint of kissing, to which the Chairman referred as a matter of very serious concern when stating the decision of the Committee, and that the evidence of Ms. B., when considered with the evidence of Ms. A., may have created the impression of a doctor who carried out improper acts against two female patients for sexual gratification. Therefore, as their Lordships are satisfied that it would be unsafe to permit the finding of serious professional misconduct against Ms.b. B. to stand, they also consider that it would be unsafe to permit the finding of serious professional misconduct against Ms. A. to stand.[22]The question then arises whether the findings of the Professional Conduct Committee should be quashed, or whether they should be quashed with a direction that there should be a fresh hearing of the complaints by a differently constituted Professional Conduct Committee. Their Lordships have decided that the second course is the proper one to adopt. In reaching this decision their Lordships have taken into account the evidence of Ms. B.’s boyfriend, which was relied upon by Miss Foster. At the hearing he stated that on one occasion when he accompanied Ms. B. to Dr. Rajan’s surgery, he sat in the reception area when she went into the consultation room and she appeared upset when she came out. He asked her what the matter was, and in the car outside she told him that the doctor had played around with her breast and nipple, and she was very upset when she was telling him this. He was asked if he remembered the precise day, but he said he did not, and that he had a bad memory for dates. Having regard to this evidence their Lordships consider that it would not be right simply to quash the findings, but that the interests of justice require that the complaints should be reheard.[23]At the hearing before their Lordships the appellant applied for leave to adduce in evidence the report of a psychiatrist in relation to the psychiatric history of Ms. B. and her reliability as a witness. Their Lordships have decided not to accede to this application because Dr. Rajan knew prior to the hearing that Ms. B. suffered from a psychiatric illness and therefore he could have sought to adduce psychiatric evidence in respect of Ms. B. at the hearing, but he did not do so. However on the rehearing of the charges it will be open to Dr. Rajan to adduce evidence which was not adduced at the first hearing and therefore he can seek to call the psychiatrist as a witness, and it will be for the Professional Conduct Committee to rule on whether such evidence is relevant and admissible.[24]The appellant also applied at the hearing that their Lordships should make an order that Ms. B. produce her 1997 diary for inspection by the appellant’s legal advisers so that they could examine it for other entries which might appear relevant to the matters arising in this case. Their Lordships have decided that they will not make such an order because they are of opinion that it is unnecessary to do so for the determination of this appeal.[25]Rule 21 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 provides:- "Any party to any inquiry may at any time give to any other party notice to produce any document relevant to the inquiry alleged to be in the possession of that party."[26]On the rehearing of the charges it will be open to Dr. Rajan under rule 21 to give notice to produce the 1997 diary to Ms. B. Their Lordships have been informed that Ms. B., although requested by the solicitors for the General Medical Council to do so, has refused to produce her entire diary for inspection on the ground that it is a very personal and private document. This attitude on the part of Ms. B. is very understandable, but their Lordships are of opinion that in the particular circumstances of this case on the rehearing of the charge in respect of Ms. B. the demands of fairness require that, not the entire diary, but the entries in the diary from 25th July 1997 to 26th August 1997 (which was the date of Ms. B.’s letter of complaint to the General Medical Council) should be produced for inspection by Dr. Rajan’s legal advisers a reasonable time before the date of the rehearing, and that if they are not produced, Ms. B.’s complaint against Dr. Rajan should be dismissed by the Professional Conduct Committee.[27]Accordingly, for the reasons which they have given, their Lordships will humbly advise Her Majesty that Dr. Rajan’s appeal should be allowed, the decision of the Professional Conduct Committee on 14th April 1999 that Dr. Rajan had been guilty of serious professional misconduct and that his name be erased from the register should be quashed, and that the matter should be remitted to a differently constituted Professional Conduct Committee to rehear the complaints of Ms.a. A. and Ms.b. B. and to come to a fresh decision. The respondent must pay the appellant’s costs of this appeal.