Baba v. General Medical Council (Professional Conduct Committee of the Medical Council) [2001] UKPC 13

Judicial Committee of the Privy Council
Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL
Between
BabaAppellantGeneral Medical Council (Professional Conduct Committee of the Medical Council)Respondent
Before
Lord Bingham of CornhillLord Hope of CraigheadSir Philip OttonDate 22 March 2001
[1]On 27 January 2000 the Professional Conduct Committee of the General Medical Council found Dr Baba guilty of serious professional misconduct and ordered that his name be erased from the Register. He appeals against that decision. He bases his appeal on two grounds: first, that the Committee wrongly refused an application for an adjournment of the proceedings made on his behalf on the morning of the hearing; and secondly, that counsel instructed on his behalf, in breach of his instructions, accepted the facts alleged against him as true when he wished to contest the truth of those facts.[2]The charge against Dr Baba (as amended at his request) was to this effect:
"That, being registered under the Medical Act, 1. a. On 4, 11 and 29 January 1996 you visited Mr C Walker, a patient registered on your NHS list of patients, b. following these consultations on 11 and 29 January 1996, you did not take any or any adequate steps to further investigate Mr Walker's condition and treatment needs, c.i. you subsequently claimed that your medical records of these consultations were made contemporaneously, ii. your claims in this respect were a. untrue b. dishonest; And that in relation to the facts alleged you have been guilty of serious professional misconduct"
. Mr Walker was a patient of Dr Baba. On the three dates specified in the charge Dr Baba visited Mr Walker at his home, where he was ill in bed. The thrust of the case against Dr Baba under paragraph 1. b of the charge was that, on 11 and 29 January, Dr Baba did less than he should have done to investigate Mr Walker's condition and the treatment he needed. The thrust of the case against Dr Baba under paragraph 1.c of the charge related to Dr Baba's notes of these three attendances on Mr Walker. He produced his hand-written attendance notes on 11 March 1997, just before a hearing by a Medical Services Committee, and at that hearing he put forward the notes as a contemporaneous record of his attendances, including the prescriptions made and advice given. In truth, so it was alleged, the notes were not a contemporaneous record, or not wholly so. Reliance was placed on the evidence of Mrs Walker and on the internal evidence of mis-dating in the notes themselves to allege that the notes or material parts of them were not contemporaneous but were written up at some date after the visits in question. The complaint of untruth and dishonesty was directed not to the contents of the notes but to the presentation as contemporaneous of notes which were not.[3]Dr Baba was a member of the Medical Protection Society, which instructed Le Brasseur J Tickle (Mr Shipway) to represent him. Dr Stephanie Bown, medico-legal adviser to the Society, became involved. Counsel (Mr Martin Forde) was instructed. Conferences were held with counsel at his chambers on 22 December 1999 and 21 January 2000, when the handling of the case was discussed. Counsel gained the impression that Dr Baba accepted the truth of paragraph 1.b of the charge. He understood Dr Baba to accept that the notes were not all made contemporaneously but he appreciated that Dr Baba was reluctant to accept an accusation of dishonesty.[4]It seems clear that on 25 January 2000 Dr Baba faxed a statement to Mr Shipway and asked him to pass on a copy to counsel. Mr Shipway did so. Counsel's recollection, which the Board has no reason to doubt, is that he first saw the statement on the morning of the hearing. There are two passages relevant to this appeal. The first relates to paragraph 1.b of the charge:
"On reflection, and with the benefit of hindsight, I wish it had been possible for me to do something more than I had been able to do. However, even with this feeling, I cannot imagine what I could have actually done. I encouraged the patient to attend for tests, I counselled the patient. I had facilities available which would have assisted. But without the patient's consent, I could do no more...."
. The second passage relates to paragraph 1.c of the charge:
" With regard to the matter of how contemporary the notes were, they were essentially made out contemporaneously, but it is quite likely that certain peripheral matters such as the time received, and the patient's name, address, and date of birth and time attended were made out other than in the patient's presence."
[5]Dr Baba met Mr Forde, Mr Shipway and Dr Bown before the hearing. He instructed counsel to apply for an adjournment of the hearing, primarily on the grounds of his ill health (there had also been an unsettling scene in the street outside the General Medical Council). The plea of ill health was supported by a certificate signed by Dr Baba's general practitioner, Dr Raju, which was dated 26 January 2000 and read:
"This is to certify that Dr Baba known [ sic ] Diabetic, Hypertensive and Asthma for the last four days suffering from flu like symptoms. I understand he has to give evidence for an enquiry at the GMC. He has been advised 10 days rest. I am worried about hypoglycaemia with viral infection."
Counsel duly applied for an adjournment. He referred to the diabetes and hypertension from which Dr Baba suffered, suggesting that his condition had been exacerbated by occupational stress and the impending hearing. He listed the medication Dr Baba was currently taking. He said:
" He does not feel up to giving evidence, and it may be, although I give this indication that certain matters are likely to be agreed, that he will not be able to give evidence, or if he does, he will not be able to do justice to himself."
Later in his address he added:
" I was confronted this morning with a client who tells me that he is quite seriously unwell, and is concerned about doing justice to his case"
. No mention was made of hypoglycaemia beyond the tenuous reference in the medical certificate.[6]The application for an adjournment was opposed by Miss Sullivan on behalf of the General Medical Council. She pointed out that these were old allegations, dating back to 1996, and that the Council's main witness (Mrs Walker) had come from a distance to attend the hearing, although elderly and unwell herself. The Committee refused the application, finding nothing to lead them to conclude that Dr Baba was unfit to give instructions or give evidence.[7]The Committee then granted a short adjournment, during which Mr Forde conferred with Dr Baba and discussed the nature of the charge with Miss Sullivan. The course of these discussions is the subject of dispute between Dr Baba and his friend (a Mr Young) on one side and Mr Forde, Mr Shipway and Dr Bown on the other. When the hearing resumed, Mr Forde agreed the facts alleged against Dr Baba, believing that he had his authority to do so. He then mitigated, making plain that the dishonesty admitted in paragraph 1.c related to the presentation of the notes as contemporaneous and not to the contents. He called Mr Young as a witness. He urged the Committee not to erase Dr Baba's name from the Register, emphasising the consequences of such an order to him and the support he received from many of his patients. Having retired, and been correctly advised by their legal assessor on the effect of paragraph 1.c of the charge, the Committee made the order already recorded.[8]In support of both grounds of appeal Dr Baba has invited the Board to consider a body of evidence which was not before the Committee on 27 January 2000 nor available to Dr Baba's advisers on that date. Dr Raju's notes of his examination of Dr Baba on 26 January, the day before the hearing (and the date on which the medical certificate was given), describe him as "incoherent". Notes of a further examination the following day, presumably after the hearing, describe him as "unable to hold proper conversations". Reports obtained from various sources suggest that Dr Baba may have been hypoglycaemic on 27 January, with consequent detriment to his powers of comprehension and concentration. This opinion accords with the statements of Dr Baba himself and Mr Young. It is not supported by Mr Forde, Mr Shipway and Dr Bown, who appreciated that Dr Baba was unwell and subject to stress on the day of the hearing but did not judge him to be unable to give instructions or give evidence if he chose.[9]The Board cannot criticise the Committee's decision to refuse an adjournment. The medical certificate of Dr Raju (which the Committee were well placed to evaluate) fell far short of what was needed to support such an application at such a stage. The Committee were bound to have regard to the undesirability of requiring Mrs Walker to attend on another occasion. The decision was one for the Committee, and on the material before them they were fully entitled to reach the decision they did. This ground of appeal must be rejected.[10]Having read the written statements of Dr Baba, Mr Young, Mr Forde, Mr Shipway and Dr Bown (but heard no oral evidence) the Board cannot accept that Mr Forde agreed the facts alleged against Dr Baba in breach of what he (and those instructing him) understood to be his instructions. These matters had been fully discussed in conference. All those representing Dr Baba believed his instructions to be clear. He made no protest at the time. This ground of appeal also must be rejected.[11]The medical evidence now before the Board does, however, raise a real question whether Dr Baba was, at the time of the hearing, in a fit state to give coherent instructions. It is to be noted that in his statement of 25 January 2000 he challenged any understanding previously reached on his liability under paragraph 1.b of the charge. He further challenged that the notes were other than contemporaneous so far as the substance of their contents was concerned: the complaint against him clearly did not rest on the adding of such formal details as the patient's name, address and date of birth. It would appear that these challenges were not maintained in conference immediately before the hearing on 27 January, and in ordinary circumstances that would be fatal to Dr Baba's application to reopen the matter. But the evidence now available, not available to anyone at the time, does cause the Board to doubt whether, despite appearances, Dr Baba was able on that date to apply his mind to the issues, appreciate the effect of the advice he was receiving and give instructions accordingly. Particularly in relation to the more serious charge in paragraph 1.c, it seems not unlikely that difficulties of communication and mental confusion on the part of Dr Baba led to an admission being made on his behalf which, if fully alert to the advice he was being given, he would not have authorised. The consequences of this finding by the Committee being as serious as they are, and there being in the opinion of the Board some risk of injustice (in no way attributable either to the Committee or to those advising Dr Baba), the Board thinks it appropriate that the matter should be remitted to a differently constituted Committee, which should consider the matter afresh. Their Lordships will accordingly humbly advise Her Majesty that the order of the Professional Conduct Committee should be set aside and the matter remitted to that Committee for rehearing. The Board considers it most undesirable that Dr Baba should practise before the Committee has made its decision and hopes that it may be possible to arrange an early hearing. The Board makes no order as to the costs of this hearing.