Brocklebank v. General Medical Council (GMC) [2003] UKPC 57

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 20 of 2003Venue FROM THE HEALTH COMMITTEE OF THE GENERAL MEDICAL COUNCIL
Between
BrocklebankAppellantGeneral Medical Council (GMC)Respondent
Before
Lord HoffmannLord Slynn of HadleyLord Walker of GestingthorpeDate 14 July 2003
[1]:- Lord Hoffmann Lord Slynn of Hadley Lord Walker of Gestingthorpe [Delivered by Lord Hoffmann ] Dr Brocklebank appeals against, first, a finding of the Health Committee of the General Medical Council on 19 February 2003 that her fitness to practise was seriously impaired by reason of her physical or mental condition and, secondly, its direction pursuant to section 37 of the Medical Act 1983 that for a period of nine months her registration be conditional upon compliance with certain conditions.[2]The Committee found the causes of impairment to be a drug dependency and a tendency to harmful use of alcohol, both being currently in remission. It imposed a number of conditions upon her registration, of which the more important were that she should(i) abstain from all forms of self-medication, including drugs available without prescription,(ii) abstain absolutely from alcohol(iii) remain under the medical supervision of Dr Jennifer Bearn, a consultant psychiatrist whose patient she had been for some time,(iv) attend regularly meetings of a support group such as Narcotics Anonymous if so recommended by Dr Bearn,(v) confine her medical practice to National Health posts where she would be under the supervision of another fully registered doctor and(vi) not prescribe or possess certain drugs.[3]There is no dispute that about six years ago Dr Brocklebank was having a serious problem with both drug addiction and excessive drinking. Her case first came before the Health Committee in 1997 after she had been convicted of driving with an excess of alcohol in the blood. In 1998 she gave certain undertakings to the Health Screener but in consequence of serious breaches of these undertakings the Committee suspended her registration on two successive occasions for periods of 4 and 7 months respectively.[4]At a further hearing of the Committee in May 2000 Dr Brocklebank's registration was restored subject to conditions substantially the same as those in the direction under appeal, except that the condition concerning alcohol was less stringent: she was to limit her consumption in accordance with her medical supervisor's advice. The requirement of total abstinence was imposed in June 2001 after some evidence that she had on occasion been drinking excessive amounts. Similar conditions were imposed at a hearing on 21 February 2002.[5]It appears from the numerous psychiatric reports on Dr Brocklebank which have been before the Committee that, despite, or perhaps because of, her high intelligence and a strong personality, she has had difficulty in governing her appetites. But in recent years and particularly since her resumption of work in November 2000 and her remarriage in August 2002 she has made considerable progress. The evidence at the hearing on 19 February 2003 was that she had not demonstrated any overt signs of drug dependency since November 1998 and that there was little, if any, evidence that she had been drinking to excess since February 2002.[6]In these circumstances the submission of Mr Cray, who appeared for Dr Brocklebank, was that the Committee could not properly find that Dr Brocklebank's fitness to practise was seriously impaired. They accordingly had no jurisdiction to impose conditions.[7]Rule 24(2) of the General Medical Council Health Committee (Procedure) Rules (SI 1987 No 2174) provides that — "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."[8]Dr Bearn said that she regarded the drug dependency syndrome as a diagnosis which should be maintained even after years of abstinence. She had seen patients relapse after many years and some authorities treated it as a lifetime diagnosis. It was therefore to be regarded as a condition currently in remission. Under the existing circumstances of stability in Dr Brocklebank's life she regarded the chance of a return to opiate dependency as very low – "practically nil". Nevertheless, a return of stressful conditions could precipitate a relapse.[9]As for alcohol, it was Dr Bearn who had recommended a condition of total abstinence – "I felt it would be therapeutic for her to have abstinence as a goal". Since then, there had been occasional lapses but no evidence of seriously harmful alcohol consumption. Nevertheless, Dr Bearn said, recalling Dr Brocklebank's earlier levels of consumption at a time of stress:
"… anybody who has suffered from that level of alcohol consumption needs to have a long-standing awareness and vigilance because they are at increased risk of reinstatement and relapse back to those levels of drinking…The risk of relapse diminishes with time but I think the vulnerability for relapse remains elevated long-term if Dr Brocklebank were under severe stress for any reason."
[10]Their Lordships consider that this evidence provides ample support for the finding of the Committee that a serious impairment existed but was currently in remission. Mr Cray submitted that the words "may be expected to cause recurrence of serious impairment" meant that the Committee had to be of the opinion that it was likely that the impairment would recur. As Dr Bearn had said that the chances of the drug dependency recurring were practically nil and that the chances of resort to excessive alcohol consumption were also fairly small, the Committee were not entitled to make a finding of current impairment.[11]Their Lordships do not think that the jurisdiction of the Committee depends upon an assessment of the chances of the impairment recurring. It is sufficient that the condition, if it recurs, may be expected to cause serious impairment. Of course the Committee will have regard to what it considers to be the likelihood of recurrence in deciding whether to impose conditions upon the registration and for how long. But the existence of an underlying condition capable of causing serious impairment if it should recur is sufficient to found jurisdiction.[12]Mr Cray submitted in the alternative that the decision to continue the conditions for another nine months was unreasonable. But their Lordships consider that the Committee was on the evidence fully entitled to take the view that the maintenance of the conditions was desirable in the interests of both the public and, it must be said, Dr Brocklebank herself. The Committee accepted the opinion of Dr Bearn that although Dr Brocklebank had made admirable progress in bringing her condition under control, the discipline imposed by the conditions and the support provided by the obligation to be guided by Dr Bearn and the medical practitioner under whose supervision Dr Brocklebank worked in the NHS had been essential elements in that success. In the absence of any present assurance that a similar discipline could be maintained in some other way, the Committee thought that it was too soon to leave Dr Brocklebank without external support. Their Lordships consider that the Committee was fully entitled to take this view. They will therefore humbly advise Her Majesty that the appeal should be dismissed with costs.

Cited in 1 later judgment