Norton v. General Medical Council (GMC) [2002] UKPC 6

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 77 of 2001

Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL

Between

NortonAppellant

General Medical Council (GMC)Respondent

Before

Lord Hutton

Lord Hobhouse of Woodborough

Lord Rodger of Earlsferry

Date 11 February 2002

[1]:- Lord Hutton Lord Hobhouse of Woodborough Lord Rodger of Earlsferry [Delivered by Lord Hutton ] This is an appeal by Dr Thomas Amadeus Kieran Norton from a direction of the Professional Conduct Committee (“the Committee”) of the General Medical Council (“the Council”) made on 23 August 2001 that his name be erased from the Register.

[2]Dr Norton is aged 45 and qualified as a doctor in 1979. He carried on practice as a general practitioner from 1983 until 1994.

[3]The charges against Dr Norton arose out of elective cosmetic surgery carried out by him in the latter part of 1993 and the early part of 1994. The technique used by him was termed liposuction or liposculpture. It involved the removal of fat from subcutaneous tissue by cannulae, which are hollow metal tubes. The fat was extracted either manually by syringe or mechanically by vacuum pump. Dr Norton received training in this type of cosmetic surgery from a French professor who was an expert in the technique between October 1992 and March 1993 and then carried out the procedure on his own.

[4]Liposculpture was a technique offered in national advertising by a number of clinics, including the Transform Clinic, where Dr Norton carried out the treatment. Prospective patients would answer an advertisement and be seen by a person who was called a counsellor. The patient would often think that the counsellor was a doctor, but this person had no medical qualifications. The patient would have a discussion with the counsellor and agree the procedure, the parts of the body upon which it was to be performed, and the charge which would be made for the treatment. On a later occasion the patient would attend the clinic for the procedure to be carried out, pay for it, and then the patient would see Dr Norton for the first time.

[5]Dr Norton became disillusioned with the practice of liposculpture and ended his connection with the Transform clinic in 1995 before the Council began to enquire into his work with that clinic. Since 1995 he has earned his living in the practice of hair transplanting in a private transplant clinic and he also carried out locum work in general medical practice until the Interim Orders Committee of the Council in the latter part of 2000 imposed conditions restricting his practice to hair transplant work.

[6]The charges against Dr Norton related to three patients, who were referred to in the hearing before the Committee as Mrs W, Mrs P and Mr B. The allegations against Dr Norton in respect of these patients were similar and related to five main areas of care:

“1. Pre-operative care, including the delegation of explanation of the procedure to non-medical staff, failure to take an adequate history, failure to perform an adequate examination, failure to explain the risks and complications involved in the procedure and failure to explain the nature of the anaesthesia or sedation to be used. 2. Care and pain relief during the procedure. 3. Post-operative care. 4. Poor cosmetic result. 5. Poor record keeping.”

[7]In the case of Mrs W the Committee found the following particulars of the charge to be established either by admission or by proof:

“(1) On 15 September 1993 you performed liposculpture on Mrs W's waist and hips, and transferred some of the extracted fat to her breasts. (2)(a) You delegated the giving of pre-operative advice and explanation of the procedure to a person who was not medically qualified. (3) Before performing the procedure you (a) failed to take and to record any or any adequate medical history, (b) failed to carry out any or any adequate physical examination of Mrs W, (c) failed to explain adequately, or at all (i) the procedure to be carried out, (ii) any risks and/or possible complications involved in the procedure, …. (iv) the possible need for further operations. (4) As a result of your failures set out in paragraphs 2 & 3 above, you failed to give Mrs W the opportunity of giving informed consent to the procedure. (5) During the procedure you (a) failed to ensure that Mrs W received adequate anaesthetic/pain relief, (b) failed to supervise and/or to monitor her sedation, (c) failed to ensure, given Mrs W's history of cardiac disease and hiatus hernia (of which you were aware or ought to have been aware), that a qualified anaesthetist was present during the procedure. (6) After the procedure you failed to ensure that Mrs W's wound was suitably dressed. (7) On 3 May 1994 you carried out a further procedure on Mrs W to remove fat from her hips and waist (“the Second Procedure”). (8) On a date between the two procedures you misled Mrs W by assuring her that she would not suffer any pain during the Second Procedure. (9) During the Second Procedure you (a) failed to ensure that Mrs W received adequate anaesthetic/pain relief, (b) failed to supervise and/or to monitor her sedation, (c) failed to ensure, given Mrs W’s history of cardiac disease and hiatus hernia, that a qualified anaesthetist was present during the procedure. (10) As a result of the above two procedures, Mrs W was left with unsightly and unnatural disfigurement in the area of her hips and abdomen. (11) You failed to make or to keep any or any adequate records of your role in these procedures.”

[8]The particulars of the charges in respect of Mrs P and Mr B which the Committee found to be established by admission or by proof were similar to the charges established in respect of Mrs W.

[9]At the conclusion of the evidence and after counsel had addressed the Committee and they had deliberated the chairman addressed Dr Norton as follows:

“Dr Norton, the Committee have given detailed consideration to all the evidence placed before them and are very concerned at the inadequacies it has revealed in the standards of your medical practice. The Committee have considered your conduct in the light of the Council's guidance applicable at the time. Members of the public are entitled to expect high standards of care from their doctors. Regardless of the circumstances in which doctors practise, they must at all times ensure that such standards are maintained. It is clear, from the evidence of the expert witnesses and the evidence of your patients Mrs W, Mrs P and Mr B, that your medical practice was extremely poor and fell below the minimum standard that patients have a right to expect. At the material time, between September 1993 and May 1994, you carried out liposuction procedures on patients at clinics run by the Transform Group. The Committee have been informed that patients would initially be seen by a Counsellor who would not normally be clinically trained and would at a later stage see a doctor once they had decided to undergo treatment. You saw Mrs P very briefly for the first time a few hours before she went to theatre. However, Mrs W and Mr B have stated that you first consulted with them very shortly before you were due to commence their operations. It is clear that in so doing, you were assuming that they had received an adequate explanation of the procedure from the non-medical staff at the Transform Clinic. The Council's guidance at the time made it clear that doctors must continue to take ultimate responsibility for their patients in circumstances where they delegate treatment or other procedures to persons who are not medically trained. You improperly delegated the giving of advice to your patients to counsellors who were not adequately trained to appreciate what was in their best medical interests. Before deciding to delegate the giving of advice to your non-medical colleagues at the clinic, you should have ensured that they were competent to carry out this function. Informed consent has always been at the very core of the relationship between doctors and their patients. You had a responsibility to ensure that your patients were well-informed about the procedures that you were proposing to carry out, the risks associated with them and the possible need for further surgery. Your failure to take an adequate medical history, to assess the suitability of these patients for treatment and to explain the nature of the procedure and the sedation to be used denied them the opportunity to make an informed decision about these procedures. It has been noted that commercial considerations were given undue prominence in clinical decision making. The Committee are satisfied that the procedures with which they have been concerned were carried out in an atmosphere which was not conducive to the making of proper decisions relating to the benefits or suitability of the operations that you performed. During the course of the operations on Mrs W, you failed to ensure that adequate pain relief had been administered. The level of pain that she experienced makes it clear that she was not adequately sedated. It is clear from the evidence of the expert witness, Mr Eastley, that the decision to carry out liposuction on Mrs P under local anaesthetic was contrary to what would have been considered safe practice. Your post-operative care of these patients is subject to particular criticism. Although it is claimed that the Transform clinic had some systems in place offering a degree of guidance to patients, the ultimate responsibility for the post-operative care of these three patients was yours. The Committee are satisfied that you failed to discharge that responsibility. The poor quality of your record keeping which you acknowledged is a further matter of grave concern. On the evidence we have heard and accepted, your management of these patients fell far below the standard that the public is entitled to expect of medical practitioners. The matters found proved taken together manifestly constitute serious professional misconduct.”

[10]It is abundantly clear that the Committee were fully entitled to find that there had been serious professional misconduct on the part of Dr Norton and there is no appeal against that finding.

[11]The chairman then stated the decision of the Committee to direct the erasure of Dr Norton's name from the Register in the following terms:

“The Committee have taken into account the fact that the matters which have been the subject of this enquiry took place a considerable time ago and that you have since ceased to carry out liposuction treatment. The Committee have also considered the contents of all the testimonials submitted on your behalf, which include reference to your current area of practice as a hair transplant surgeon. Nevertheless, given the serious findings against you, your wholly inadequate standards of practice and the Committee's duty to protect members of the public, they are satisfied that the public interest demands that your name be erased from the Register. Accordingly, they have directed the Registrar to erase your name from the Register.”

[12]The submissions advanced on behalf of Dr Norton by his counsel, Mr Hockton, in support of his appeal against erasure can be considered under four main heads.(i) The nature of the misconduct and the time when it took place. Counsel submitted that the misconduct took place seven years ago in a narrow field of medical practice and arose out of the inadequate system in which he (and other doctors in such clinics) worked and for which he should not be regarded as solely responsible. In addition, notwithstanding that the three patients had poor results and that Mrs P developed extensive necrosis and inflammation of the anterior abdominal wall and was left with a severely deformed and uncomfortable abdomen, there was no specific allegation of poor surgical technique against Dr Norton.

(ii) The conduct of Dr Norton since he ceased to carry out liposculpture procedures . Counsel submitted that it was to the credit of Dr Norton that he himself decided to cease to carry out liposculpture in 1995. Since that time he had earned his living in the practice of hair transplanting in private clinics and in doing some work as a locum in general practice until the restriction imposed by the Interim Orders Committee. There had been no criticisms of the manner in which Dr Norton carried out these types of work. Therefore counsel submitted that there would be no risk to the public if Dr Norton were permitted to carry on his practice of hair transplanting, under strict supervision by other experienced doctors, hair transplanting being the sole means of livelihood for himself and his family. A further relevant consideration was that hair transplanting was a much less invasive surgical procedure than liposculpture with no requirement for the administration of sedation.

(iii) The professional guidelines in relation to the consent of a patient had evolved significantly since the events in question . Counsel submitted that during the years between 1995 and the present time a much greater emphasis had been placed on the need to obtain an informed consent from a patient, and the importance of this requirement would not have been so apparent to Dr Norton in 1993 and 1994.

(iv) The change in the period to elapse after erasure before an application for restoration can be made . Counsel submitted that in considering whether erasure was justified it was relevant to take account of the fact that the effect of erasure was made much more serious by the Medical Act 1983 (Amendment) Order 2000 which substituted a five year period for a ten month period before an application could be made for restoration, following erasure from the Register.

(v) The approach of the Committee . Against the background of the matters on which he had made submissions counsel further submitted that there were errors implicit in the approach of the Committee. The approach which should be taken was set out in Rule 31 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 which relates to how the Committee should proceed after a finding of serious professional misconduct. Rule 31 provides:

“2(a) The Committee shall first consider and determine whether it shall be sufficient to direct that the registration of the practitioner shall be conditional on his compliance, during such period not exceeding three years as the Committee may specify, with such requirements as the Committee may think fit to impose for the protection of members of the public or in his interests. (b) If the Committee so determine they shall then consider and decide the nature and duration of the conditions to be imposed, and shall so direct. (3) If the Committee determine that it will not be sufficient to impose conditions on the practitioner's registration they shall next consider and determine whether it shall be sufficient to direct that the practitioner's registration shall be suspended; and, if they so decide, they shall direct that such suspension should be for such period, not exceeding twelve months, as they may specify in the direction. (4) If the Committee determine that it will not be sufficient to direct suspension in accordance with paragraph (3), they shall thereupon direct that the name of the practitioner shall be erased from the Register.”

Counsel submitted that in stating their decision to direct erasure the Committee had made no express reference to considering the less stringent steps of conditional registration or suspension. He also submitted that the Committee had erred in failing to take sufficient account of the hardship which would be suffered by Dr Norton and his family if he were to lose his livelihood through being unable to practise in a hair transplant clinic, and in failing to recognise that the public could be adequately protected if strict conditions were imposed on Dr Norton's registration requiring him to carry on the practice of hair transplanting under the supervision of other doctors.

[13]In a number of recent decisions the Board has made it clear that on an appeal from the Committee its function is appellate and not supervisory and that, whilst it will accord an appropriate measure of respect to the judgment of the Committee on the measures necessary to provide adequate protection to the public, the Board will consider all the matters raised in the appeal and is fully entitled to substitute its own decision for that of the Committee: see Ghosh v GMC

[2001] 1 WLR 1915

and Preiss v GDC

[2001] 1 WLR 1926

[14]In this case the Board is satisfied that the decision to erase the name of Dr Norton from the Register was correct and entirely justified. This was not an isolated case in which the appellant departed from the proper standards to be expected of a doctor. He was in serious breach of his professional duties in respect of three patients. His counsel submitted that his defaults were confined to the narrow field of liposculpture, but his breaches of duty related to central and basic areas of medical practice, including failure to give proper explanations to patients and to obtain informed consent from them before the procedures, failure to ensure adequate anaesthetic/pain relief, failure to provide adequate post-operative care or to ensure that adequate post-operative care was provided by others, and failure to keep proper records. These are failures which did not arise out of the specialised area of liposculpture but are failures which could occur in many areas of medical practice. It constitutes no mitigation that the failures occurred in private clinics where, as the Committee observed, “commercial considerations were given undue prominence in clinic decision making”. Such an environment should have brought it home to the appellant that he must not allow his proper professional standards to be compromised. Whilst in recent years greater emphasis has, no doubt, been placed on the importance of informed consent, Dr Norton did not dispute at the hearing before the Committee that he was aware of this obligation.

[15]The Board considers that there is no matter of substance in the point made that following erasure the period before application can be made for restoration has been extended from ten months to five years. As Lord Millett observed in paragraph 37 of Ghosh v General Medical Council :

“Even before [3 August 2000], however, it was the Council's policy that a practitioner whose name was erased from the register could not normally expect to have his name restored; save in exceptional circumstances erasure was for life. The amendment merely reflected the way in which the existing law was applied in practice.”

[16]The Board further considers that there is no validity in the point that the Committee did not expressly refer to the lesser measures of the imposition of conditions or of suspension in giving its decision to erase the name of the appellant from the Register. The Board is satisfied that the Committee would have considered these options, but decided that the case was so grave that a more lenient course would not be an appropriate response and that the protection of the public required erasure.

[17]The Board recognises that the erasure of Dr Norton's name from the Register will constitute a serious hardship for him and his family. The Board has given careful consideration to counsel's argument that, having regard to the nature of the case and to the various factors to which he referred, the public could be protected by the imposition of strict conditions that Dr Norton be confined to the practice of hair transplanting under the close supervision of other doctors. However the Board is satisfied that having regard to the various serious failures of Dr Norton in a number of areas of basic medical practice the Committee was entitled to conclude that the protection of the public did require erasure. In so deciding the Board has taken into account the consideration that whilst hair transplanting is not as invasive a procedure as liposculpture, it is also carried out in private clinics where some patients may be vulnerable and have psychological problems and will require proper pre-treatment explanation and advice, the obtaining of informed consent, and proper care after the treatment. The Board is also satisfied that a condition requiring Dr Norton to practise under the supervision of other doctors would not be a practicable measure and would not give adequate protection to the public.

[18]Accordingly their Lordships will humbly advise Her Majesty that the appeal ought to be dismissed. Dr Norton must pay the Council's costs before the Board.