Hall v. General Medical Council) [2001] UKPC 46

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 25 of 2001

Venue FROM THE HEALTH COMMITTEE OF THE GENERAL MEDICAL COUNCIL

Between

HallAppellant

General Medical Council)Respondent

Before

Lord Hope of Craighead

Sir Anthony Evans

Sir Philip Otton

Date 7 November 2001

[1]:- Lord Hope of Craighead Sir Anthony Evans Sir Philip Otton [Delivered by Sir Anthony Evans ] This appeal is by Dr Anthony Peter Hall FACP, FRCP against the determination by the Health Committee of the General Medical Council on 21 February 2001 that his registration as a medical practitioner should remain suspended for a further period of twelve months from 18 March 2001.

[2]The original period of suspension was ordered by the Health Committee on 18 February 2000 ("the original order") for a period of twelve months, which became effective on 18 March 2000.

[3]The appellant did not appeal against the original order, although a letter from his wife dated 17 March 2000 was received by the Registrar of the Privy Council on 20 March 2000, after the time-limit for appealing expired. This was pointed out to her by the Registrar in a letter dated 22 March 2000 to which there was no reply.

[4]The Health Committee's determination on 18 February 2000 included the following:- "The Committee are concerned about your mental condition, your total lack of insight into the nature of your condition and the effect this may have on your fitness to practise as a registered medical practitioner. They have judged your fitness to practise to be seriously impaired by reason of a condition classified in the ICD-10 Classification of Disorders as F31 - bipolar affective disorder. ... The Committee have therefore directed that your registration be suspended for a period of 12 months. ... The Committee recommend that you seek regular treatment from a consultant psychiatrist and that you should also place yourself under the medical supervision of a consultant psychiatrist, who will be asked to report to the Committee on your progress."

[5]On 15 November 2000 the appellant was notified that the Committee would resume consideration of his fitness to practise at their meeting in the week beginning 19 February 2001, and on 22 January 2001 that his case would be considered on 21 February. After that hearing, which the appellant attended and where he spoke on his own behalf, the Committee determined as follows:- "The Committee … have considered all the information presented to them and remain concerned about your condition. In particular they have noted the views of the medical examiners that your insight is limited and that you are not willing to accept medical supervision. They have again judged that your fitness to practise remains seriously impaired by reason of a condition classified in the ICD-10 Classification of Disorders as F31 - bipolar affective disorder. In reaching this decision the Committee have had regard to Rule 24(2) of their procedure rules. That rule indicates that the Committee are entitled to regard as current serious impairment either the practitioner's current physical or mental condition, or a continuing and episodic condition, or a condition which, although currently in remission, may be expected to cause recurrence of serious impairment. In view of all the evidence, they do not consider that it would be appropriate to allow you to return to medical practice. They have directed that your registration should be suspended for a further period of 12 months."

[6]The Committee's reference to the Rules is important. Rule 24 of The General Medical Council Health Committee (Procedure) Rules Order of Council 1987-97 as amended in 1996,1997 and 2000 (SI 1987 No 2174) reads as follows:

"24(1) … [The Committee] shall consider and determine whether they judge the fitness to practise of the practitioner to be seriously impaired by reason of his physical or mental condition. (2) In reaching their judgment the Committee shall be entitled to regard as current serious impairment either the practitioner's current physical or mental condition, or a continuing and episodic condition, or a condition which, although currently in remission, may be expected to cause recurrence of serious impairment."

[7]Also relevant to the present appeal are sections 37 and 40 of the Medical Act 1983 (as amended by the Professional Performance Act 1995 and the Medical Act (Amendment) Order 2000). Section 37 provides:- "37. (1) Where the fitness to practise of a fully registered person is judged by the Health Committee to be seriously impaired by reason of his physical or mental condition the Committee may, if they think fit, direct – (a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or ... (3) Where the Health Committee have given a direction for suspension under subsection (1) … above, the Committee may – (a) direct that the current period of suspension shall be extended for such period from the time when it would otherwise expire as may be specified in the direction; … (3A) The Health Committee may give a direction extending a period of suspension indefinitely where – (a) the period of suspension will, on the date on which the direction takes effect, have lasted for at least two years; …"

[8]Section 40 subsections (1)(b) and (4) of the Act provide for an appeal to Her Majesty in Council, but by section 40(5) no appeal lies from a decision of the Health Committee "except on a question of law". Section 40(7) lists the powers of the Judicial Committee, including under subsection (7)(d) power to remit the case to the Health Committee for disposal by it.

[9]The present appeal, although it is brought only against the Committee's February 2001 determination that the period of suspension should be extended for a further twelve months, nevertheless requires consideration of the original order of suspension made in February 2000. This is because the appellant challenges the finding of unfitness to practice that the Committee made then, contending that he does not and never did suffer from the condition of bipolar affective disorder as the Committee have found. The Committee, he says, were wrong to make that finding in February 2000 and they were wrong to make the further order which is now under appeal.

[10]The medical evidence before the Committee at the later hearing was to the effect that the appellant was not displaying present symptoms of the condition which was found to exist in February 2000, but that the condition persisted and was then in remission. Hence the significance of the Committee's express reference to Rule 24(2), which entitled them to regard as a "current serious impairment" a condition which "although currently in remission, may be expected to cause recurrence of serious impairment".

[11]The appellant relies upon the absence of symptoms in February 2001 as evidence that he does not and never has suffered from the mental condition of bipolar affective disorder, also known as manic depression, or as the appellant chooses to describe it colloquially, that he was "mad". He says that the doctors upon whose reports the Committee relied in February 2000 and again in February 2001 were all, for different reasons, wrong. His present ambition is to demonstrate to them the error which he says they made. History

[12]The appellant was born in 1936 and is now aged 65. His academic career has been described as "brilliant". He qualified as Bachelor of Medicine in 1958 after studying at University College Hospital, London. He moved to the United States of America as a Senior Clinical Research Fellow at the John Hopkins University and the University of Washington during 1966-1969. He then joined the United States Army and served in Vietnam, where he commanded a 1000 bed hospital and was awarded the Purple Heart Medal. He became a specialist in the study and treatment of malaria and in 1971 he became a Fellow of the American College of Physicians. He married his wife, who is American, in 1972. From 1972 until 1975 he was Head of Clinical Malaria Research at the SEATO laboratory in Thailand, and in 1975 he was promoted to full colonel. In 1975 he was offered and accepted the opportunity to return to London as a Consultant at the Hospital for Tropical Diseases. He remained there until he resigned in 1994. The circumstances in which he came to leave the hospital are unclear from the papers before the Board, but it seems that he was suspended in 1993 and that from 1994 until 1996 he suffered from acute depression which he attributes to fears for his financial security following his resignation, fears which he now says were unjustified.

[13]Early in 1995, he attempted suicide by jumping out of a second-floor window of an hospital where he was being treated. This caused serious physical injuries including a fractured skull, with possible neurological consequences which have not so far been fully investigated.

[14]Although he accepts that he suffered from depression at that time, the appellant denies all suggestions that he has suffered any form of mental illness since 1996, and he asserts in particular that he has never shown any symptoms of manic behaviour which the doctors who examined him in 1999 relied upon in their diagnoses of bipolar affective disorder. He refers extensively to the large number of posts he held as a locum consultant or physician between 1996 and April 1999 as evidence of his fitness to practise then. These appointments took him to many different parts of England, including the Isle of Wight, and in January 1999 to the Walsgrave Hospital in Coventry. He says that his medical skills and care were appreciated by patients and were recognised by the authorities, who invited him to return for further appointments and who, at Coventry, extended the original period of his engagement there.

[15]Two separate and apparently unconnected events led to the General Medical Council being alerted in April 1999 to concerns as to the appellant's mental condition and as to his fitness to practise. On 8 April the Clinical Director of the Walsgrave Hospitals NHS Trust wrote privately to the Medical Director giving his reasons for believing, after interviewing the appellant, that "there is a real question about his competence to practise unsupervised medicine". On 22 April the Medical Director wrote to the Fitness to Practise Directorate at the GMC:- "I would like to inform you of my grave concerns regarding the clinical competency and mental stability of Dr. Anthony Peter Hall during his employment with us as a Locum Consultant Physician from February to April this year."

[16]The visit had dramatic consequences. On 22 April Dr Baker-Lomax together with Dr David Sumners MBBS MRCPsych, a consultant psychiatrist, and accompanied by nurses and a police officer, visited the appellant at his home, where he was physically detained under powers given by the Mental Health Act and removed to hospital. He remained there until 10 May. He refused to take the drug Lithium which was prescribed for him, until finally he agreed to do so, he says, in order to obtain his release. He has not taken it since then, and this has become one of the major bones of contention between him and all the doctors whom he has seen.

[17]Meanwhile, on 15 April 1999, Dr Baker-Lomax wrote to inform the Health Screener at the GMC that he considered that the appellant was temporarily unfit to practise. On 24 May 1999 the Assistant Registrar of the GMC wrote to the appellant inviting him to be examined by medical examiners to be chosen by the Screener for Health acting for the GMC, and to nominate other doctors to examine him and report to the GMC if he wished them to do so. The first hearing - 18 February 2000

[18]Although the appellant does not appeal against the original order, as explained above it is necessary to have regard to the evidence that was placed before the Health Committee on that occasion. Briefly, there were reports from Dr Geoffrey Lloyd MA MD MPhil FRCP FRCPsych, Consultant Liaison Psychiatrist, and from Dr Gaius Davies MPhil FRCPsych DPM, Emeritus Consultant Psychiatrist at King's College Hospital and other London hospitals, and from Dr Richard Thompson DM FRCP, Consultant Physician at St. Thomas' Hospital. Their conclusions included the following:- Dr. Geoffrey Lloyd "I believe Dr. Hall suffers from a bipolar affective disorder, currently having a hypomaniac episode. I consider his illness to fulfil the ICD-10 criteria of F31.0. ... Dr. Hall has little or no insight into the fact that he is psychiatrically unwell. I believe he is not well enough to practise as a doctor at present, although he might be in the future if he undergoes appropriate treatment under psychiatric supervision." Dr. Gaius Davies "I considered he showed many features of a chronic hypomaniac disorder, as part of an affective disorder … Dr. Hall was physically fit but that he was suffering from a Bipolar Affective Disorder (or Manic Depressive Disorder) in a hypomaniac phase, as described in ICD … F 30.0 … I do not think he is fit to practise at all at present … As to future management, I believe he needs to recognise his need for help and for treatment … I think most competent psychiatrists would consider Lithium …" Dr. Thompson " My opinion, having extensively talked to him, is that he is an intelligent man with considerable expertise, but now lacks balance and understanding … I would be unhappy if he were allowed to continue to practise … in my opinion his grasp of general medicine is now faulty … I am sorry that Dr. Hall has ended up in this position but, unless there is a considerable improvement, I cannot recommend he return to any form of medical practice."

[19]The appellant responded in writing to all these reports and he placed a great deal of documentation before the Committee. He gave them his account of the years he spent in practice as a locum from 1996 to 1999 and he emphasised that no complaint was made of his treatment of patients, many of whom had expressed their appreciation of his medical care and skills, though he recognised that there were some patients and their families who had not appreciated advice which he offered with regard to their lifestyles, stressing the importance as he saw it of controlling their diet and their body weight. He had been wrongly detained in April 1999. He had been able to provide care and comfort for his father who had died in November 1999 aged ninety. He was physically fit and was still a successful cricketer, having until recently been President of his local club. All of this was inconsistent with the diagnoses of mental disorder; he had never been manic or displayed any of the symptoms of bipolar affective disorder; all the doctors were wrong.

[20]Their Lordships observe that, if there had been an appeal against the original order, it would have been impossible for the appellant to contend that there was no or insufficient evidence before the Committee to justify their decision. Rather, the medical evidence was unanimous and it may be doubted whether any other conclusion was open to them. The February 2001 hearing

[21]When the appellant was notified that the further hearing would take place in February 2001, he was asked to state in reply:- "1. Whether you agree to be medically examined. 2. Whether you wish to nominate another medical practitioner to examine and report on you in addition to those chosen by the Screener for Health …; 3. Whether you agree that the GMC may request a report from your treating Psychiatrist, if any, …; 4. Whether you wish to offer any observations or other evidence on your fitness to practise to be forwarded to the medical examiners. You will, of course, have a further opportunity to offer observations and evidence for presentation to the Health Committee."( GMC letter dated 15 November 2000)

[22]The appellant replied on 31 December 2000 after receiving a reminder dated 30 November. The first part of his letter encapsulates the submissions which he later made orally to the Health Committee, at somewhat greater length, and which he repeated to the Board both orally and in writing in the course of this appeal. His contention was that he had been fully and usefully occupied after February 2000 in ways which demonstrated that he was fit both physically and mentally and that the doctors and the Committee had been wrong. The letter also demonstrates the appellant's pre-occupation with the importance of controlling body weight. The letter may usefully be quoted, almost in full:- "I apologise for the delay in replying to your letters … I offer a partial excuse in that I have been busy: 1. sending Christmas cards and gifts. 2. delivering newspapers and magazines along hilly, winding, country lanes to 49 homes in rural Harpenden from 7 a.m. on Sundays and from 6 a.m. the other six days … Please see the enclosed testimonial dated 15th August 2000, including 'Tony has been cheerful, efficient and reliable'. 3. working at Sainsbury's Supermarket in Harpenden 20 hours + overtime weekly between 6th November 2000 and the 5th of January 2001 … I have given in my notice because: 4. I have been asked by my long-time friend … to work as his assistant in Topkins Pharmacy starting 8th January and 5. driving disabled and/or elderly people to hospitals, clinics and shops for Harpenden Helping Hand. Please see the enclosed testimonial, including:

'He is a cheerful, sensible and careful driver'

. I have pleasure in answering your questions: 1. I agree to be medically examined by two London-based psychiatrists whom I have not met before. I suggest that they have appointments at teaching hospitals which may indicate their quality … 2. I do not propose any other consultations. 3. I agree to your asking for a report from Dr. Geraldine O'Sullivan, a slim, fit Consultant Psychiatrist who phoned me on the 17th of May 2000 and sounded pleased to hear about my happy, active and normal life. 4. My fitness to practise was confirmed by my late father and other patients detailed in the green sheets read by the GMC in February 2000. After that, I found the charming card from … a young man with acute onset diabetes ... whom I admitted in February 1999. … The card reads:

"Thank you for your help … With your knowledge, charisma and charm, You are an asset to the medical profession …" (copy enclosed). [The patient] sent me this card two months before my imprisonment with the false diagnosis of madness in St. Albans in April 1999 by 20 stone Dr. David Sumners, ... Naturally, I request that the General Medical Council now reinstate my right to practise medicine ..."

[23]In the event, reports were prepared by Dr A R M Freeman BM FRCPsych. and by Dr Roger Farmer M Sc MD MRCP FRCPsych., Senior Lecturer at St. George's Hospital Medical School, both Consultant Psychiatrists, and by Dr Geraldine O'Sullivan MB MRCPsych.MD, also a Consultant Psychiatrist and Associate Medical Director of the West Herts Community Health NHS Trust. Dr O'Sullivan said that she had "nominally" been the appellant's consultant psychiatrist since July 1999 when, it seems, he was transferred to her by Dr Sumners. These reports concluded as follows:- Dr. Freeman "At present Dr. Hall is living the lifestyle of a younger retired person. I think he, with the support of his wife, underestimates the possibility of a recurrence of affective illness were he in a more stressful situation than his present one. In my view his ability to practise remains seriously impaired by reason of bipolar affective disorder, currently in remission (ICD F31.7). I do not think he is fit to practise without medical supervision, which he made it clear to me he is not willing to accept." Dr. Farmer "From the information available to me the diagnosis is bi-polar affective disorder, currently in remission ... In my opinion his fitness to practise is seriously impaired by reason of manic depression. I think it is of concern that he appears to have so little insight into having suffered from mania in 1999 as there appears to be strong evidence for this. He has also been reticent to have contact with mental health services. On the other hand, when I saw him, there was no evidence of current mental disturbance." Dr. O'Sullivan "I believe that Dr. Hall's current mood is euthymic with no clear symptoms of hypomania or depression. However, given the history and my previous examination of Dr. Hall in July 1999 I believe he suffers from Bipolar Affective Disorder, which is currently in remission (ICD(10) Code 31.7). There is no evidence of any cognitive impairment, nor is there sufficient evidence to support a diagnosis of personality disorder. Dr. Hall's insight is limited, and he refuses to accept the diagnosis of Bipolar Affective Disorder and, therefore, refuses to be seen regularly by myself as an outpatient, or to take any psychotropic medicine ... I should like to treat Dr. Hall with lithium but if this is unacceptable to him, an alternative mood stabiliser could be considered. In view of the diagnosis of Bipolar Affective Disorder, there is a possibility of relapse especially in the absence of a mood stabiliser."

[24]The appellant and his wife both responded in writing to these reports, which he described in a letter to the GMC dated 17 February 2001 as "grossly inaccurate and unfair", adding:- "All three psychiatrists claimed that I am mad (bipolar affective disorder/manic depression), despite personal letters from my dear wife and evidence that I have been perfectly well since 1996 and working well recently for Sainsbury's, Alldays and the Harpenden Helping Hand, as I detailed succinctly to you on the 31st of December."

[25]At the hearing on 21 February 2001 the appellant produced a letter of that date addressed to Professor Frank Woods DPhil, FRCP, the Chairman of the GMC Health Committee, enclosing further documentation on which he relies. This formed the basis for his oral address to the Committee, of which their Lordships have read the full transcript. The contents were already familiar to the Committee from their reading of earlier documents. The appellant accepted that he suffered from depression in 1994/1996. He relied upon the history of locum appointments as evidence that he was fit to practise thereafter, and upon his local activities and employments in 1999/2000 as demonstrating that he was, and remained, in good physical and mental health throughout. He denied that he was ever manic. He said that the doctors had found no symptoms of the illness at their recent examinations because he did not and never had suffered from it. The previous diagnosis was incorrect, and they ought not to have concluded, relying upon it, that the condition remained, albeit in remission.

[26]There were less attractive suggestions, for example, that the doctors were somehow influenced by the GMC to come up with conclusions that supported the Committee's earlier view (cf. the letter dated 17 February 2001 referred to above). In their Lordships' view, these matters can be disregarded, and there is no indication that the Health Committee was influenced by them. More substantial was the point made in the last paragraph of the letter to the chairman:- " Depression. Several of the psychiatrists who have examined me have stated that, whilst not depressed now, I could relapse at a later date. Surely, if I was going to be depressed, it would have been last February when you suspended my licence, deprived me of my right to earn a living as a doctor and humiliated me in front of my peers. But, far from being depressed, I got on with my life … All of this is normal, positive living." "There are doctors who have murdered patients; doctors who have botched operations and killed patients with incorrect dosing; doctors who are addicted to drugs and alcohol and doctors who are convicted of rape and other sexual abuses. By comparison, the complaints about me are trivial and I hope you will reconsider your decision and reinstate my licence."

[27]Their Lordships have noted from the transcript of the proceedings that the appellant was questioned by each member of the Committee and by the two medical Assessors, respectively a psychiatrist and a physician. His answers were discursive, and although their Lordships are lay persons in medical matters they could well believe that the Committee was able to regard some of them as inappropriate and as further evidence of the condition which had been diagnosed.

[28]There is and could be no suggestion that the proceedings were not conducted properly and in full accord with the requirements of natural justice. This appeal

[29]The appellant, who was accompanied by his wife, read a lengthy document to the Board and provided copies at the end of the hearing. In it, he reiterates the history of the matter and his contentions regarding the past to which sufficient reference has already been made. Two recent developments, however, should be noted. First, the appellant wrote on 9 October 2001 to Professor John Cox DM FRCPsych, FRCP, FRCPE, President of the Royal College of Physicians, requesting a meeting with him. A meeting took place but Professor Cox wrote afterwards "It was a pleasure for me to meet you at the College although I could only be of limited assistance to you". The appellant's letter emphasised two matters which are now his main preoccupations: the original (1999) diagnosis was wrong, and his refusal to take Lithium is justified. He said this about Lithium:- "Four of your psychiatrists (Gaius Davies, Geoffrey Lloyd, Geraldine O'Sullivan and David Sumners) have tried to poison me by prescribing (Sumners) or recording their advice that I take Lithium (Davies, Lloyd and O'Sullivan). As you know, Lithium (often useful in manic depression) can cause death and numerous symptoms including cognitive and memory impairment which could hamper my work as a physician, as well as convulsions, thyroid and kidney damage."

[30]Secondly, the appellant has twice recently seen Dr O'Sullivan for review, at his own request. Their Lordships believe that the incentive which led to him making this request was the reference in the Health Committee's Determination to his unwillingness to accept medical supervision and their recommendation that he should place himself under medical supervision of a consultant psychiatrist. After the first visit, Dr O'Sullivan wrote on 5 September 2001- "He clearly continues to hold beliefs on various issues very strongly and is unable to see that others perceive him as being abnormal in view of his strident behaviour and forceful views. However, during the interview there was no evidence that he was significantly manic at present, and there was no evidence of any risk to others. I got the impression that his wife manages to keep his behaviour in check, despite her insistence on his normality."

[31]Her second report is dated 9 October. She wrote:- "I reviewed Dr. Hall on Monday 8 October. He attended on his own, and the absence of the calming influence of his wife was apparent from early on in the interview ... He refuses to acknowledge the possibility that he may have a mood disorder and is not willing to consider taking a mood stabiliser under any circumstances at present ... It is clear that the only reason he comes to any appointment is to prove his own point, i.e. that he is not mentally ill and that he is a very clever man who knows better than everybody else. We both agreed that there is little point in routine appointments ..."

[32]In his address to the Board, and in his answers to questions, the appellant made it clear that his principal contentions are, first, that the present absence of symptoms of bipolar affective disorder is evidence that the original diagnosis was wrong, not that the condition is currently in remission, and secondly, that taking Lithium with its well known side effects would be dangerous for him, when he does not have the condition for which it may be prescribed. He asserts that the Committee was wrong to say that he would be unwilling to accept supervision if he was allowed to resume practice; he would be willing to accept conditions which could be imposed by the Committee if the matter was remitted to them.

[33]Miss Rosalind Foster appeared for the GMC and the Board is grateful to her for her assistance. She referred to section 40(5) of the Medical Act 1983 which precludes any appeal from the decisions of the Health Committee "except on a question of law" and she submitted that there was ample material to support the Committee's conclusions. The psychiatrists were unanimous that the appellant had suffered from bipolar affective disorder and that the absence of current symptoms showed that the condition was in remission, not that the diagnosis was incorrect. Conclusion

[34]Their Lordships have no hesitation in accepting Miss Foster's submissions. No question of law is raised by this appeal, unless it is asked whether there was sufficient evidence before the Committee to justify the finding that they made. The question may be re-phrased along the lines "could the Committee, acting reasonably and with requisite skill, and properly advised as to the correct approach in law, make their finding on the basis of the evidence that was before them?". Although the process of formulating what is essentially a factual and evidential matter as a question of law is sometimes discouraged, their Lordships are content to assume that some such question can properly be asked in the present case. In their view, whatever the precise formulation, only one answer is possible to it. The medical evidence was effectively unanimous. The Committee were entitled to form their own views as to whether the diagnosis was correct, and in the lay opinion of the Board they could reasonably conclude from their own observations of him and from their own reading that the appellant's fitness to practise remained seriously impaired by reason of his mental condition which, although currently in remission, could be expected to recur, as defined in Rule 24(2) to which the Committee referred. The Committee's findings, in their Lordships` opinion, cannot be assailed.

[35]For the sake of completeness, their Lordships have also considered whether it might be appropriate to remit the case to the Committee for them to reconsider whether the appellant could be permitted to resume practice under conditions which could be imposed under section 37(3)(b) of the Act, taking account of the appellant's recent reviews by Dr O'Sullivan and his statement to the Board that he would be willing to accept medical supervision. Their Lordships are satisfied that this suggestion must be rejected also. As Miss Foster observed, the appellant remains determined to get the doctors to accept that their diagnoses of his illness were wrong, and he continues to refuse to take medicaments which he says are unnecessary. This would not provide a satisfactory basis for future co-operation between him and a psychiatrist or physician who was supervising him.

[36]For these reasons, their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the Respondents their costs of the appeal, to be taxed if not agreed.