Pembrey v. General Medical Council (GMC) [2003] UKPC 60

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 97 of 2002Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL
Between
PembreyAppellantGeneral Medical Council (GMC)Respondent
Before
Lord HoffmannLord Slynn of HadleyLord Rodger of EarlsferryDate 15 July 2003
[1]:- Lord Hoffmann Lord Slynn of Hadley Lord Rodger of Earlsferry [Delivered by Lord Rodger of Earlsferry ] The appellant, Mr Michael Robert Pembrey, appeals from the decision of the Professional Conduct Committee ("the Committee") of the General Medical Council ("the Council") dated 22 November 2002, directing that his name should be erased from the Medical Register. The Committee made this direction after finding that Mr Pembrey had been guilty of serious professional misconduct in relation to seven patients. Before the Board Mr Pembrey challenged the Committee's finding in relation to only three of these patients, patients C, G and H. Moreover, he accepted that, on the basis of their findings in respect of the remaining four patients alone, the Committee would have been entitled to find that he had been guilty of serious professional misconduct. On his behalf Mr Francis QC submitted, however, that, if the Board were to allow his appeal in relation to cases C, G and H, then the proper course would be to quash the Committee's determination that his name should be erased from the register and to substitute a determination that his registration should be subject to certain conditions. Their Lordships examine the three cases in turn.[2]In April 1994, in the course of a sterilisation operation on patient C, her cervical canal was found to be stenosed. The appellant decided that a Multiload IUCD should be inserted in an attempt to keep the canal open and so "to prevent the cervical canal stenosing down again", as the operation note put it. The IUCD was inserted and the intention was that it should remain in place for about six weeks. In due course, after the patient's general practitioner had tried unsuccessfully to remove the IUCD, she had to return to hospital where she went through a series of procedures to locate and remove it. It is common ground that when, during one of these procedures, the appellant's registrar inserted a hysteroscope to try to find the device, a perforation of the uterus occurred. The appellant was called and took over the procedure. A perforation of that kind is not unusual and would have been expected to heal over without further treatment. The Council preferred no charge against the appellant relating to that perforation. However, some months later during a further operation carried out by another surgeon, it was discovered that, when the IUCD was inserted, it had not been inserted into the uterus. Rather, it had perforated the uterus or cervical canal and had ended up in the Pouch of Douglas. It was these complications resulting from the earlier perforation that meant that a hysterectomy had to be performed.[3]The Committee found it proved, in terms of charge 6(b), that Mr Pembrey had inserted a Multiload IUCD to help prevent stenosis although such a practice is not medically recognised and is not clinically justified as treatment for this purpose. In terms of charge 6(c), which relates to the earlier perforation, the Committee further found that the insertion of the IUCD was incompetent in that the appellant perforated the uterus and inserted the IUCD incorrectly through the uterine wall. By these errors of management the appellant had subjected the patient to a series of procedures culminating in a hysterectomy which she would not otherwise have had to undergo. The Committee announced their conclusions in this way:
"On 22 April 1994 you performed a laparoscopic sterilisation and noted her cervical canal was stenosed. You dilated the cervix and inserted a Multiload intra-uterine contraceptive device (IUCD) to try to prevent stenosis, although this is not medically recognised or clinically justified treatment. In fact, the device was inserted incompetently, the patient's uterus was perforated and as a consequence she was required to undergo further procedures, culminating in a hysterectomy, which she would otherwise not have had to undergo. You failed to detail the counselling or advice given to this patient regarding the procedures she underwent."
[4]The evidence shows that, when faced with the stenosis, the appellant decided to use the IUCD in the hope of keeping the two walls of the endometrial cavity apart while the tissue on each side generated. He thought that the device, by acting on the endometrium, would give rise to a greater tone in the uterine body and so could help to pull up the cervix and reduce the stenosis. He appears to have used the Multiload IUCD, however, simply because "it was the next best thing to a stent" and he had nothing else available at the time. There was, however, nothing in the rest of the evidence to show that this type of IUCD would work as a stent to prevent cervical stenosis in this way. None of the witnesses called for the appellant had actually used a Multiload IUCD for that purpose; nor were they aware of colleagues who had used one in this way. No medical literature was cited to support its use for that purpose. It therefore appears that, faced with the problem of the cervical stenosis, Mr Pembrey embarked on a procedure which is not recognised and which cannot be shown to be effective.[5]In itself, that would be a matter of serious concern. It is that much more serious, however, when the procedure in question is known to carry with it a risk of perforation of the wall of the uterus. The two aspects are brought together in a passage in the evidence of Mr Clayton on which the Council rely:
"A. The fact that it was put through the uterus, taken per se, I would not be critical of, but taken in conjunction with the fact that it is an unusual reason for inserting a coil, I would consider that it was inappropriate to do so. Q. You are saying if it had been inserted for a normal reason, you would accept a risk of uterine perforation? A. Yes, I would. Q. But because it was inserted for an unusual reason, you criticise it in any event? Can you explain to us why that affects your view as to the perforation? A. I do not think that a copper 375 device would have any beneficial effect on preventing cervical stenosis. To put it in in the first place I think was, as I said, unusual and certainly in my belief, from what I have tried to research, I would think was not common practice, not the best practice. Q. When you say it was 'not the best practice', Mr Clayton, do you think it was acceptable practice? A. No."
Their Lordships are satisfied that, without proper consideration, the appellant embarked on a procedure which involved a risk of perforation of C's uterus without any proper medical justification. That risk materialised. On the other hand, they acknowledge that, on the evidence, it is not entirely clear whether it was the appellant himself or his assistant who actually performed this part of the operation, perforated the uterus and inserted the IUCD incorrectly through the uterine wall. The Committee did not indicate, specifically, how they had resolved that issue and so felt able to find charge 6(c) proved. Their Lordships need not deal with that question, however, since they are content to proceed on the basis that, irrespective of who actually inserted the IUCD, in adopting the course that he did the appellant created an unnecessary and unjustified risk of a perforation of the uterus which eventually resulted in patient C having to undergo a hysterectomy.[6]The other cases relate to two patients, G and H, who suffered from severe mental incapacity. In each case the appellant carried out a hysterectomy. At the relevant time the Council's guidance to doctors who had to treat patients with mental incapacity was to be found in paragraph 21 of their publication, Seeking patients' consent: the ethical considerations (November 1998):
"No-one can give or withhold consent to treatment on behalf of a mentally incapacitated patient. You must first assess the patient's capacity to make an informed decision about the treatment. If patients lack capacity to decide, provided they comply, you may carry out an investigation or treatment, which may include treatment for any mental disorder, that you judge to be in their best interests. However, if they do not comply, you may compulsorily treat them for any mental disorder only within the safeguards laid down by the Mental Health Act 1983, and any physical disorder arising from that mental disorder, in line with the guidance in the Code of Practice of the Mental Health Commission. You should seek the courts' approval for any non- therapeutic or controversial treatments which are not directed at a mental disorder."
The booklet goes on, in paragraph 25, to state the "best interests" principle:
"In deciding what options may be reasonably considered as being in the best interests of a patient who lacks capacity to decide, you should take into account: • options for treatment or investigation which are clinically indicated; • any evidence of the patient's previously expressed preferences, including an advance statement; • your own and the health care team's knowledge of the patient's background, such as cultural, religious, or employment considerations; • views about the patient's preferences given by a third party who may have other knowledge of the patient, for example, the patient's partner, family, carer, tutor-dative (Scotland), or a person with parental responsibility; • which option least restricts the patient's future choices, where more than one option (including non-treatment) seems reasonable in the patient's best interests."
[7]The Committee explained their conclusions on the appellant's treatment of patient G in this way:
"Patient G was born in February 1981, suffers from Williams Syndrome and has a severe learning disorder. She was first seen by you in April 1999, following a referral from her general practitioner, Dr Bennett. The referral indicated she was very handicapped, was receiving love letters from boys, was unfit to look after a child, and asked you to consider sterilisation. Notwithstanding her mental capacity, patient G was, by then, an adult. She was accompanied to the outpatient's appointment on 12 April 1999 by her mother who was at all relevant times responsible for her daughter's care. At that appointment you arranged for patient G and her mother to sign a form 'consenting' to the patient undergoing a total abdominal hysterectomy. The same day, you wrote to Dr Bennett stating that you had recommended hysterectomy. You asked Dr Bennett to confirm that this was in the patient's best interests. She replied expressing the view that 'sterilisation' was in the patient's best interests. On 12 August 1999 you carried out a hysterectomy. The Committee have found your treatment of this patient was irresponsible and inappropriate because you failed properly to analyse whether she had the capacity to consent and failed to seek guidance from others involved in her medical, educational and social care regarding her capacity to consent and her medical and social needs. You failed to analyse whether a hysterectomy was for therapeutic or contraceptive reasons, did not recognise the controversial nature of conducting a hysterectomy on this patient in these circumstances when you should have done and also failed to seek the approval of the court to this operation by way of a declaration. There was no great urgency requiring hysterectomy as first-line treatment. Your decision to carry out a hysterectomy without first investigating any menstrual problems she may have suffered and without attempting other contraceptive methods was irresponsible and not in her best interests. You have admitted deficiencies in the standard of your record keeping about this patient."
[8]Patient G was born on 26 February 1981. The critical events took place between March and August 1999 when G was 18 years of age and when, accordingly, no-one else could any longer consent on her behalf to any medical procedure. She suffered from a rare disability known as Williams Syndrome. Her medical records showed that, at least from 1990, G's mother had been worried about the possibility that G would be vulnerable to sexual interference. By 1992 the question of administering Depo Provera contraceptive injections had been raised. In a letter of 22 July 1994 to Dr Scott (copied to Dr Shepherd), following a consultation with G and her mother, Dr Mary Rees wrote, however, that her mother's "main concerns were that [G] suffered with constant pain on the inside aspects of her thighs which was worse with her periods. [G's mother] was also concerned that [G] had very painful periods. Periods were lasting 7 days every month and were described as very heavy.... We have [sic] a very long talk about her anxieties and I felt that the pains she described were perhaps perceived as more severe than they really were." On 3 March 1999 Dr Mitchell, a consultant paediatrician, saw G along with her mother at her school. Afterwards he spoke to G's general practitioner, Dr Bennett, on the telephone. In his letter dated 10 March to her Dr Mitchell referred to their discussion about an "issue" and said that he "would be supportive of the view of the family and yourself". It is clear both from his contemporary note and from Dr Mitchell's evidence that the "issue" was the possibility of sterilisation which G's mother had raised with him.[9]It appears that the conversation between Dr Mitchell and Dr Bennett must have occurred very shortly after Dr Mitchell saw G since on 4 March Dr Bennett wrote to the appellant referring G whom she described as "this very handicapped young lady". She said:
"She was seen by the paediatrician at Eastbourne yesterday, a gentleman by the name of Dr Mitchell, and mother discussed the fact that [G] was getting love letters from the boys. There is no way that [G] would be fit to look after a child and mother has requested and is supported by Dr Mitchell and myself in the fact that [G] should be sterilised."
The referral letter does not mention any menstrual problems. In evidence Dr Mitchell accepted that he had indeed supported the view of Dr Bennett and G's mother that it would be in G's best interests for her to be sterilised although he thought that the letter stated his view somewhat strongly. He did not recall being told of menstrual problems and he had not recorded any in his contemporary note. His recollection was that G's mother had raised the matter "in the realm of contraception".[10]The appellant saw G and her mother on 12 April. Although the appellant did not recall this, it appears that a friend of the family, known as Uncle Michael, may also have been present. Because of the appellant's failure to keep proper records, the only contemporary account of what occurred is to be found in the letter that he wrote the same day to Dr Bennett. In it he said inter alia:
"After full counselling we have agreed that her name should be put on my soon waiting list for TAH with conservation of both ovaries. I will do this operation myself. This patient has extreme difficulty in coping with her periods and was absolutely delighted that she could be rid of them. I should be most grateful if you would be kind enough to write to me confirming, in your view, that this 'permanent' sterilisation procedure is in the best interest of the patient."
The striking feature is that, whereas in her referral letter Dr Bennett had mentioned only problems which suggested that sterilisation should be carried out for purposes of contraception, on the basis of this single meeting the appellant formed the view that permanent sterilisation should be carried out for an entirely different reason - as a means of dealing with G's problems in coping with her periods. These differences of approach suggest strongly that there were good reasons to explore exactly why a hysterectomy would be justified - whether for therapeutic or for contraceptive reasons or for a combination of the two. Despite this, the appellant had in effect already decided to perform the operation.[11]In her reply dated 27 April Dr Bennett founded on both the therapeutic and contraceptive aspects:
"I would confirm that I feel that sterilisation operation is in the best interests of this young lady. She suffers from Williams' Syndrome and gets terribly upset and excitable and is bothered by her periods. I feel that she would not cope with any relationship because of her state and that it is in her best interests to have the surgery done."
When he received this reply, the appellant took no steps to clarify matters. In reality this is scarcely surprising since, even though the appellant asked Dr Bennett to confirm his opinion that the hysterectomy should be performed, by the end of the consultation with G and her mother he had in effect already decided to do it. He had formed this view immediately and without discussing the matter with any of the other doctors and experts who were involved in looking after G.[12]The fact that the appellant had reached this conclusion simply on the basis of his twenty-five-minute consultation is shown also by the fact that, at the consultation, the appellant had both G and her mother sign the ordinary form which is used to record a patient's consent to an operation. The use of this form was doubly inappropriate.[13]First, since G was 18, her mother could not consent on her behalf. Their Lordships think it possible at least that the appellant got G's mother to sign, not because he thought she could consent on behalf of G, but because he was anxious to place her agreement to the operation on record in case she were subsequently to complain about what had been done. They proceed on that basis.[14]So far as G herself is concerned, when she was referred to the appellant, Dr Bennett indicated that she suffered from severe mental incapacity and attended a school for children with that condition. Moreover, Dr Bennett confirmed in evidence that she considered that G was incapable of giving consent to the operation. Dr Mitchell had previously indicated that G suffered from Severe Learning Disorder. The appellant said himself that he considered that "she was certainly unable to consent for herself, or understand, or appreciate, what any of these operations or procedures they were talking about would mean to her. She needed somebody to make the decision for her". Although the accounts of the course of the consultation given by the appellant and by G's mother differed, their Lordships see no reason to doubt that, by reason of his observations during the consultation, the appellant did indeed feel able to assess that G was incapable of consenting to the surgery in question. There is nothing in the evidence to contradict that assessment. Their Lordships are therefore not persuaded that the Committee were correct to hold that the appellant failed properly to analyse whether G had the capacity to consent to the proposed treatment (charge 14(a)).[15]But once the appellant had concluded that G was not capable of consenting to the treatment, it was quite inappropriate for him to purport to obtain her signature to a consent form. He did this, moreover, even though he was aware that in the case of patients with mental incapacity he should follow a special procedure, involving the authorisation of another doctor to be recorded on an appropriate form. Their Lordships have noted, of course, that in August 1999, shortly before the operation was carried out, a junior doctor at the hospital also, quite wrongly, purported to obtain the consents of G and her mother to the operation. While this suggests that the appellant was not alone in his confusion as to the correct procedure to follow, it does not detract in any way from the significance of that failure on the appellant's part.[16]The hysterectomy went without a hitch and both G and her mother expressed themselves as delighted with the result.[17]In their Lordships' view the appellant's failure to follow the appropriate authorisation procedure is symptomatic of a deeper failure to think through the course of action on which he was embarking. That would be deplorable whatever the situation; it was that much more deplorable when the appellant was setting out to perform an operation with profound and irreversible effects on the whole future course of G's life. Their Lordships have already noted that the appellant decided that G should be sterilised without consulting any specialist colleagues or carrying out any further enquiries which would have provided him with the kind of medical and social information that paragraph 25 of the Council's guidance indicates a doctor should take into account when deciding what is in the best interests of a patient who is incapable of consenting. Such further exploration of the medical background might have clarified, for instance, whether, as the records suggested, G or her mother might have exaggerated the pain which she suffered during her periods.[18]It is clear, moreover, that the appellant did not take time to explore whether any other, less drastic, treatment might have been appropriate in G's case. As Mr Francis was right to emphasise, the evidence of Professor Cardozo and Miss Fozzard suggests that, had alternative treatments been considered, the appropriate conclusion might well have been that sterilisation was indeed in G's best interests. Even the Council's expert witness, Dr Clayton, who thought that Depo Provera, the Mirena coil and the contraceptive pill should all have been considered as possible less drastic treatments, acknowledged that, if these alternatives had been discussed and problems with them had been anticipated, then "you would be left with little alternative but to turn to the possibility of hysterectomy, had all other suggestions been refused for sound reasons". He accepted, moreover, that at the end of the day, following full discussion with the patient and further consultation with other carers, the overall decision would depend on a balance of judgment by the doctor concerned. In their Lordships' view, ultimately, the legitimate criticism of the appellant is not so much that he decided to perform the hysterectomy. Rather, it is that he could not have been sure that this most drastic of treatments was in her best interests unless he had first identified, discussed with colleagues and rejected all the possible alternatives. Which he manifestly did not do. The Committee were accordingly justified in finding charge 14(a)(ii)(b) proved.[19]The Committee found that the appellant failed to recognise the controversial nature of the treatment which he proposed and that he failed to seek the approval of the High Court for that treatment (charge 14(a)(iv) and (v)). It appears to their Lordships that, if in the appellant's view G was indeed suffering greatly from her periods and no less drastic treatment than hysterectomy would have been effective, then, if another practitioner had been of the same view, the appellant would have been entitled to perform a hysterectomy without seeking a declaration from the High Court: Re GF (Medical Treatment) [1992] 1 FLR 293, 294 per Sir Stephen Brown P. This again suggests that, in reality, the substantial failure of the appellant may have been his failure to obtain a second opinion, rather than any failure to make an application to the High Court. But that merely underlines how wrong the appellant was to rush to the conclusion that a hysterectomy should be carried out without further discussion with the appropriate colleagues.[20]Their Lordships turn now to the case of patient H, who was born on 21 January 1977 and suffered from Down's Syndrome. In many respects her case resembles G's and their Lordships can therefore deal with it somewhat more briefly.[21]The Committee outlined their conclusions on H's case in the following passage:
"Patient H suffers from Down's Syndrome, has a severe learning disorder and at all times was looked after by her carer. Patient H was referred to you by her general practitioner, Dr Kinloch, who told you she found her periods distressing and was unable to cope with the menstrual flow and resulting hygiene problems. Dr Kinloch also indicated that the carer wished to discuss hysterectomy or any appropriate medication for patient H. You saw patient H and her carer in November 1998 in outpatients and recorded total abdominal hysterectomy as the proposed treatment. In January the following year at a pre-operative assessment carried out by your SHO, a form consenting to patient H undergoing a total abdominal hysterectomy was signed by the carer. You and your registrar signed an undated form indicating that patient H was not capable of consenting and stating that the hysterectomy was in her best interests. The operation took place on 4 May 1999. Your treatment of this patient was irresponsible and inappropriate because you failed properly to analyse her capacity to consent and failed to seek guidance from others involved in her medical, educational and social care regarding her capacity to consent and her medical and social needs. You failed to analyse whether the operation was for therapeutic, contraceptive or social reasons. You did not recognise the controversial nature of treating this patient for the social consequences of normal menstruation by hysterectomy when you should have done. You also failed to seek the approval of the court to his operation by way of declaration. You admitted that your records were not adequate because they fail to note preoperative counselling provided to patient H and her carer regarding treatment options and their advantages and disadvantages."
[22]H's general practitioner, Dr Kinloch, referred her to the appellant by letter dated 17 September 1998 when she was 21. Having said that H had Down's Syndrome and was on tablets to try to control her menstrual periods, Dr Kinloch went on:
"Whilst she is having regular periods, she continues to find them very distressing, is soiling herself, and is clearly not able to cope very well with the menstrual flow, and the hygiene problems that arise therefrom. Her carer was wondering whether it would be possible for you to see [H], with a view to discussing a total abdominal hysterectomy, or any other medication that might be appropriate."
As Dr Kinloch acknowledged in evidence, H's problem was social rather than medical. That is not, of course, to suggest that it was anything other than difficult and distressing. Having seen H on 2 November 1998, the appellant wrote to Dr Kinloch the same day to say that H had attended with her carer. The carer herself had a daughter with Down's Syndrome who had had a hysterectomy three years before. The appellant concluded:
"After full counselling we have agreed to early admission for TAH with conservation of both ovaries. I will do this operation myself"
. At the hearing the appellant gave evidence to the effect that H was having heavy painful periods which meant that she could not go to school during them. He said that she would be doubled up in pain and discomfort. The note made at the time of the consultation is so perfunctory that it provides no record whatever of what was said at the consultation. But it is noteworthy that the appellant made no mention of such symptoms when he wrote to Dr Kinloch on the day of the consultation.[23]It is obvious that in this case the appellant adopted much the same approach as in the case of G. On the basis of his necessarily relatively brief outpatient consultation, he immediately made up his mind to carry out a hysterectomy. He obtained the signature of H's carer to a consent form even though H was an adult. He did not consult colleagues who were involved in her care or carry out any other investigation into her medical or social background before reaching that conclusion. There is no sign that the appellant considered other possible options even though the general practitioner had specifically raised the possibility of an appropriate medication.[24]The Committee found that the appellant had failed properly to analyse whether H had the capacity to consent (charge 16(a)(i)). As in the case of G, however, their Lordships would not attach much importance to that criticism since it is not suggested that H was in fact capable of consenting to this treatment and there therefore seems little reason to question the appellant's view, based on seeing and talking to H, that "she was never going to be in a position where she would have an understanding of the situation". Indeed the Council's expert, Mr Clayton, did not consider that a second opinion was necessary on the point.[25]In this case also their Lordships accept that, if no other treatment was feasible, then hysterectomy was the appropriate treatment in H's best interests. Indeed they can go further since, in his report, Mr Clayton in effect accepted that, if the appellant had approached the High Court to obtain approval, he "would be very surprised if he had not received their backing". When Mr Clayton was giving evidence, counsel for the appellant referred to that comment and went on:
"That carries with it, I suggest, an opinion on your part that it must follow that you would consider that what was proposed was in fact in this patient's best interests; or alternatively, would be considered by the court to have been in her best interests?"
Mr Clayton replied "Both". In these circumstances their Lordships are reluctant to attach undue weight to the Committee's finding that the appellant failed to seek the approval of the High Court to the proposed treatment by hysterectomy (charge 16(a)(v)). The focus of the main criticism must be on the appellant's failure to investigate the whole circumstances more fully and to discuss the question with appropriate colleagues (charge 16(a)(ii)(a) and (b)).[26]Rather as happened in the case of G, shortly before H was due to have her operation, the young doctor who saw her obtained her carer's consent to the operation - in the mistaken belief that this was appropriate. His ignorance of the appropriate procedure in this country was perhaps venial since he had been trained in Spain. When H was admitted for the hysterectomy, however, various members of staff raised questions about the consent. Pre-medication was therefore postponed. In the event difficulties were experienced with intubation and the operation had to be re-scheduled for a later date. In the meantime on 29 March 1999 the appellant wrote requesting the appropriate form for cases where the patient was unable to consent. The appellant and his registrar completed that form. There was nothing in the evidence to indicate, however, that the registrar had investigated the matter in such a way as to be able to express an independent and informed view that the proposed treatment was in H's best interests and should be given.[27]Their Lordships' overall conclusion is that, in this case, as in the case of G, the appellant did not take the steps which were appropriate before deciding to treat H by means of a hysterectomy. Particular care was needed when her general practitioner was in effect asking whether the operation should be performed for social rather than therapeutic reasons and was asking whether the problem could be addressed by medication. In that situation a hysterectomy was more controversial. While the decision to perform one may well none the less have been justified in the best interests of H, the appellant was not entitled to cut corners and to reach that decision without considering other possible options, without exploring the whole medical and social background and without discussing all the relevant aspects with his colleagues and obtaining a second informed view. These safeguards are necessary in any case where the patient is unable to consent. The necessity for them is all the more obvious where the treatment in question is irreversible and has profound implications for the future course of the patient's life.[28]In the light of their examination of the three cases, their Lordships have modified certain aspects of the Committee's conclusions. On the other hand, even after those modifications are taken into account, the main thrust and substance of the Committee's determination in respect of the three cases remain essentially the same. While on the particular facts of cases G and H their Lordships would not attach the same significance as the Committee to the appellant's failure to apply to the High Court for a declaration, they do attach great importance to his total disregard for the other aspects of the Council's guidance relating to the treatment of patients who are unable to consent. That failure was all the more serious since hysterectomy was an irreversible step, carrying major implications for the lives of both the young women concerned. Their Lordships are accordingly satisfied that, when all seven cases are taken together, not only does the finding of serious professional misconduct stand but the quality of the misconduct is not materially altered.[29]In these circumstances their Lordships have to consider whether the Committee were right to erase the appellant's name from the register because of his misconduct in these seven cases. Their Lordships are free to reconsider the question for themselves but will properly have regard to the view of the Committee comprising, among others, professional members with particular insight into what is required to maintain public confidence in the practising members of the profession. The Committee explained their reasoning in this way: "Applying the principles of proportionality, the Committee agreed that in the light of your serious failings it was insufficient to conclude the case. The Committee carefully considered the imposition of conditions, which would need to be proportionate, enforceable and measurable. The Committee deliberated on the proposal from the Royal College of Obstetricians and Gynaecologists' working party discussion document on ' Further Training for Doctors in Difficulty '. They noted that the Royal College was willing to attempt this in your case and that Professor Shepherd from St Bartholomew's Hospital indicated a willingness to help. The Committee concluded that even these conditions were not appropriate because of their serious concern at your continued lack of insight into your actions. The Committee noted that you had been involved in inquiries in 1992, 1996 and 1998 and yet three very serious cases (involving patients G, H and I) occurred in 1999 after the 1998 Royal College assessment had made recommendations as to your practice. Even Professor Shepherd, who came today to give evidence on your behalf, following a number of meetings with you in the last year, mentioned 'a certain amount of a lack of insight into either his own practice capabilities or, indeed, understanding of what the patients might appreciate'. He made a similar comment later. The Committee then determined that a period of suspension would also not address your failings, sufficiently protect the public and maintain public confidence in the profession. The Committee has therefore ordered that your name be erased from the register…".[30]Mr Francis submitted that, in deciding to erase the appellant's name from the register, the Committee had done more than was necessary to maintain public confidence in the profession. He pointed out – correctly – that there was nothing to suggest that the appellant was anything other than a skilful surgeon. The Health Service and the public in general could ill afford, he said, to do without the services of a highly trained and experienced surgeon such as the appellant. The professional misconduct arose out of his attitude when dealing with patients, which might be criticised as displaying a certain lack of insight. Problems of that kind were remediable and the Royal College Obstetricians and Gynaecologists and Professor Shepherd had offered an alternative approach under which the appellant would undergo a period of retraining, designed to tackle these deficiencies. Professor Shepherd had considered that the appellant's lack of insight could be corrected if he participated in a team and talked with colleagues, medical and non-medical. Part of the problem had been that, previously, in his department and in his Hospital Trust, there had been difficult personal relationships which would have made the working environment untenable. The Committee had therefore been wrong to treat the appellant as someone who simply lacked the necessary insight to act in this field: they should have recognised that the particular working environment had contributed to the problem. The Board should therefore quash the Committee's determination to erase the appellant's name from the register and should instead substitute a determination that his registration should be subject to certain conditions designed to ensure that the appellant underwent retraining and, in the meantime, practised only under supervision.[31]Although Mr Francis presented his submissions on the matter of penalty just as powerfully as he had presented those on the three cases, their Lordships are not persuaded that they should follow the course which he advocated. In particular, they have in mind not only that the seven charges covered a period of some nine years but also that they involved a number of patients. In addition, the present proceedings were not the first in which the appellant had been involved. Inquiries at a lower level had been held in 1992, 1996 and 1998. Despite this, the appellant persisted in disregarding the proper standards for treating patients, especially the most vulnerable. In that situation their Lordships see no basis for second-guessing the Committee's considered determination that the protection of the public and the maintenance of public confidence in the profession meant that the appropriate course was to erase the appellant's name from the register. On the contrary, their Lordships regard that determination as fully justified in the circumstances.[32]For these reasons their Lordships will humbly advise Her Majesty that Mr Pembrey's appeal should be refused and that he should pay the respondents' costs before the Board.

Cited in 1 later judgment