Seyedi v General Medical Council (GMC) [2003] UKPC 67

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 15 of 2003

Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE 24th July 2003,

Between

SeyediAppellant

General Medical Council (GMC)Respondent

Before

Lord Hope of Craighead

Sir Andrew Leggatt

Sir Philip Otton

Date 3 October 2003

[1]:- Lord Hope of Craighead Sir Andrew Leggatt Sir Philip Otton [Delivered by Sir Philip Otton ] At the conclusion of the hearing on 24th July 2003, their Lordships agreed humbly to advise Her Majesty that the appeal should be dismissed and that the appellant should pay the respondent's costs of the appeal and stated that they would give their reasons later. This they now do. Introduction:

[2]This is an appeal pursuant to section 40(1) of the Medical Act 1983 (as amended) from the decision of the Professional Conduct Committee of the respondent Council ("PCC") made on Wednesday 29 January 2003 that the appellant was guilty of serious professional misconduct and the imposition of conditions upon him for a period of one year.

[3]The appellant was born in 1942 and graduated as a doctor in Tehran. He came to practice medicine in this country in the 1970's and following a number of hospital appointments was employed in 1983 as the Medical Officer at the Princess Margaret Hospital in Windsor.

[4]The patient concerned ("Mr A") was 56 years old when, in June 2000 he died of a drug overdose at his home. His life had been dramatically altered by the first Gulf War and as a result of an accident he had become dependent upon pain killers. The appellant first met this patient in the 1980's when he treated him for a respiratory infection, but did not see him again until April 2000. The appellant was then practising as a private GP from 1, Albany Place, Egham, Surrey.

[5]Between the 27th and 29th January 2003 the PCC conducted an enquiry into a charge of serious professional misconduct arising out of his prescribing addictive pain-killing drugs to the patient who subsequently died as a result of an overdose of those drugs. The Hearing:

[6]At the hearing the appellant faced seven heads of charge. He admitted heads 1-6 and these were found proved:

"Head (1) Between 1 April 2000 and 27 June 2000 you were working as a private general practitioner in Egham Surrey – admitted and found proved ; Head (2) – During this period Mr A, who had a long history of drug addiction, consulted you on a number of occasions complaining of pain following a whiplash injury – admitted and found proved ; Head (3a) – On or about 8 April 2000 you were consulted by Mr A and you prescribed to him 100 Dihydrocodeine (30mg) tablets and a number of Lorazepam tablets (2.5mg) – admitted and found proved ; Head (3b) – On or about 15 April 2000 you were consulted by Mr A and you prescribed to him 100 Dihydrocodeine (30mg) tablets, 100 Lorazepam (2.5 mg) tablets and 60 Palfium tablets (10mg) – admitted and proved ; Head (3c) – On or about 29 April 2000 you were consulted by Mr A and you prescribed to him 100 Dihydrocodeine (30mg) tablets, 100 Lorazepam tablets (2.5mg) and 60 Palfium tablets (10mg) – admitted and found proved ; Head (3d) – On a date unknown between 1 April 2000 and 27 June 2000 you were consulted by Mr A and you prescribed to him 100 Lorazepam (2.5mg) tablets and 60 Palfium (10mg) tablets – admitted and found proved ; Head (3e) – On 24 June 2000 you were consulted by Mr A and you prescribed to him 60 Lorazepam (2.5 mg) tablets and 60 Palfium (10mg) tablets – admitted ; Head (3f) – Also on 24 June 2000, because the pharmacist had no 10mg tablets in stock, you substituted a prescription for 60 Palfium tablets (10mg) in paragraph 3(e) above by issuing two prescriptions for 60 Palfium (5mg) tablets – admitted and proved ; Head (4) – On or about 27 June 2000 Mr A died after taking a major dose of Dextromoramide (Palfium) – admitted and proved ; Head (5) – In prescribing the drugs listed in paragraph 3 above to Mr A (a) You did not take any steps to check the veracity of what you were told by Mr A – admitted and proved ; (b) You did not take any steps to establish whether or not Mr A had an NHS practitioner treating and prescribing to him – admitted and found proved ; (c) You had inadequate knowledge of this patient's medical history before prescribing addictive drugs to him – admitted and found proved ; Head (6) – You prescribed addictive drugs to Mr A without taking steps to (a) Avoid creating dependence – admitted and found proved ; (b) Ensure that your patient did not increase his dose of drugs – admitted and found proved; (c) Monitor the dosage of drugs he was taking – admitted and found proved ;"

The appellant did not admit and contested Head (7) which stated:

"Your actions in paragraphs 3, 5 and 6 above were (a) Inappropriate – Not admitted by Appellant but found proved ; (b) Irresponsible – not admitted by Appellant but found proved ; (c) Not in the best interests of your patient – not admitted by Appellant but found proved ; And that in relation to the facts alleged you have been guilty of serious professional misconduct."

[7]Counsel for the respondent called or read the following evidence: two members of the deceased family, Dr Catherine Hutchings, (the deceased's NHS General Practitioner – called); Rahima Chowdry (Pharmacist – read); Paul Norley (Thames Valley Police Chemist Inspector – called); Dr Mabel Thyveetil (Consultant Histopathologist – read); Dr Gordon Challand (Consultant Bio-Chemist – read); Dr George Dyker (respondent's expert – called).

[8]The appellant did not give evidence, nor was any evidence called on his behalf. However his case had been set out in a letter to the respondent dated 8th January 2002 from his solicitors. This can be summarised as follows.(i) The appellant originally met this patent in the mid-1980s when he presented as a distinguished, meticulous and wealthy man.

(ii) He contacted the doctor again in April 2000 and a consultation was arranged for 8th April. By this time the patient's life had changed dramatically and he was now homeless. He was living in Maidenhead on a temporary basis and did not have an NHS GP. He was only in the UK for a short period of time.

(iii) As the result of a road accident he was on pain killers and said he had previously been prescribed DF118 (Dihydrocodeine) and Lorazepam. The appellant did not expect to see the patient again.

(iv) On 15th April the patient returned, the pain was not being relieved and so the appellant agreed to prescribe stronger medication (Palfium).

(v) On 29th April the patient returned and the appellant queried the patient's use of the medication. The appellant was reassured by the patient's physical appearance and the patient's advice that he was only taking the drugs for pain relief. Accordingly, the appellant wrote out another prescription for DF118, Lorazepam and Palfium.

(vi) There was a further consultation on a date unknown between 29th April and 24th June 2000. As a result of that consultation the prescription for DF118 was deleted and the appellant issued a further prescription for Palfium and Lorazepam. The appellant advised the patient to register under the NHS should he require further treatment.

(vii) On 24th June the patient attended once more. He appeared well and was well presented. The appellant gave a further prescription for Palfium and Lorazepam and repeated his advice that the patient ought to register with a GP if he wished further treatment.

[9]Having heard submissions on behalf of the respondent and the appellant the Committee determined that the disputed heads of charge (under Head 7) were found proved and that the facts admitted and proved would not be insufficient to support a finding of serious professional misconduct.

[10]The Committee then invited further representations, received advice from the Legal Assessor and considered their determination. On 29th January 2003 the Chairman announced that:

"At the material time you were working as a private General Practitioner in Egham, Surrey. Mr 'A', who had a long history of drug addiction, consulted you on a number of occasions complaining of pain following a whiplash injury. You admitted in the course of this hearing that you prescribed Mr 'A' large quantities of Dihydrocodeine, Lorazepam and Dextromoramide (Palfium) tablets on a number of occasions between 8 April 2000 and 24 June 2000. You also admitted that you did not take any steps to establish whether or not he had an NHS practitioner treating and prescribing to him and that you had inadequate knowledge of his medical history before prescribing addictive drugs to him. You further admitted that you prescribed addictive drugs to this patient without taking steps either to avoid creating dependence or to ensure that Mr 'A' did not increase his use of drugs; nor did you take steps to monitor the dosage of drugs he was taking. The Committee have found that your actions were inappropriate, irresponsible and not in the best interests of your patient. The Committee heard that on 27 June 2000 Mr 'A' died after taking a major dose of dextromoramide (Palfium). The Committee accepted your Counsel's argument that this fact did not fall within the ambit of the Committee's consideration. Doctors are expected to exercise their prescribing privileges with the utmost care, and probity. The GMC publication 'Good Medical Practice' (July 1998) clearly states that in providing care doctors must 'prescribe only the treatment, drugs, or appliances that serve the patient's needs'. It further states that good clinical care must include 'an adequate assessment of the patient's condition, based on the history and clinical signs, and if necessary appropriate examination'. You had inadequate knowledge of this patient's medical history before prescribing large quantities of addictive drugs to him. Your standard of practice as revealed in the course of these proceedings fell well below that expected of a registered medical practitioner. The Committee have, therefore, found you guilty of serious professional misconduct. The Committee have considered what action to take in relation to your registration. They have taken into account the excellent testimonials from a wide range of professional colleagues and patients submitted to the Committee, together with the submissions made on your behalf. They have heard of your unblemished clinical record and have taken into account the fact that your conduct in this case was out of character. Nevertheless, given the serious nature of the findings against you, they have determined that they must take some action in relation to your registration. In doing so they have taken account of the public interest and of issues of proportionality. They considered that a reprimand would be insufficient and therefore direct that your registration should be made subject to the following conditions for a period of one year"

. The conditions imposed were:

"(i) That you do not prescribe 'Controlled Drugs' as defined in the Misuse of Drugs Act 1971; (ii) That you seek advice from the relevant Post-Graduate Dean on appropriate training on the prescribing of drugs likely to cause dependence or misuse and that you attend and satisfactorily complete the recommended training; (iii) That you provide a resumed hearing of this Committee with details of your compliance with this training together with a report from the Course Tutor or the supervisor appointed by the Post-Graduate Dean. (iv) You shall notify all current and potential employers at the time of application, whether for voluntary or paid work which requires registration with this Council, of the conditions imposed on your registration by this Committee."

The Appeal:

[11]Miss Mary O'Rourke appeared for the Appellant before the PCC and their Lordships' Board. She advanced three grounds:(1) A challenge to the findings under Head (7) of "actions which were inappropriate, irresponsible and not in the best interests of the patient";

(2) The finding of serious professional misconduct was not justified;

(3) That the conditions imposed were inappropriate and oppressive. Head (7)

[12]Miss O'Rourke submitted that there was no evidence that the appellant provided the wrong prescription of inappropriate medication. The undisputed evidence was that the appellant was prescribing the identical or same (type of) drugs in similar (or lesser) monthly quantities as were provided by the patient's NHS GP. The PCC ought to have provided reasons for its findings so as to exclude the otherwise clear inference that the Committee wrongly took into account matters known only with hindsight, such as the death of the patient and the contents of the patient's disclosed NHS medical records which were never available to the Appellant. Thus their findings under Head (7) were unreasonable, illogical and irrational where there was no evidence that the Appellant knew or believed that the patient had a dual supply whose existence he might reasonably be expected to discover. The PCC ought to have concluded that there was insufficient evidence to permit them to be satisfied that the appellant's prescriptions or actions were inappropriate, irresponsible, or not in the best interests of the patient when judged at the time of each consultation and prescription.

[13]Their Lordships are unable to accede to this submission. In their view the admissions in Heads (1) to (6) disclose an alarming state of affairs. On the 8th April 2000, when first consulted, the appellant prescribed 100 Dihydrocodeine and an unspecified number of Lorazepam. One week later the appellant prescribed a further 100 Dihydrocodeine, 100 Lorazepam and 60 Palfium tablets. Fourteen days later the appellant prescribed another 100 Dihydrocodeine, 100 Lorazepam and 60 Palfium tablets. On the fourth occasion (on a date not identified in the appellant's note) he prescribed a further 100 Lorazepam and 60 Palfium. On the fifth occasion (24th June) the appellant prescribed 60 Lorazepam and 60 Palfium. There was evidence, which the PCC clearly accepted, that the drugs prescribed were addictive or highly addictive and had been excessively prescribed. Dr Dyker gave evidence that the combination of Lorazepam, Dihydrocodeine and Palfium was a dangerous combination and that the appellant had broken all three basic rules of prescribing addictive drugs:

"Q: And those are? A: One is that you should think very hard about starting any patient on any drug that can be abused. The second is that, if you do decide to start, you keep a careful watch that the patient is not increasing the tablets, i.e. becoming dependent or developing tolerance. The third is that you should avoid unwittingly becoming a supplier of addictive drugs."

Even in his solicitor's letter there is no explanation as to why he had prescribed drugs in such quantities. Accordingly, their Lordships have no hesitation in concluding that taking the admissions as a whole and the expert evidence of Dr Dyker the PCC were fully justified in concluding that the appellant's actions in Heads (3), (5) and (6) were inappropriate, irresponsible and not in the best interests of the patient. Serious Professional Misconduct:

[14]Miss O'Rourke challenged the finding of serious professional misconduct on the basis that the PCC must have wrongly taken into account factors which ought to have been excluded from its consideration. These included the death of the patient, information (such as his medical history and that he was receiving dual prescribing) which was not available to the appellant. They failed to take into consideration or disregarded, with no legitimate basis for doing so, the only evidence of what was told to and known by the appellant as to the patient's medical and social history. The finding was unreasonable or irrational on the evidence and where the charges related to one patient only, where he had an unblemished record of more than 25 years of practice and where this was an isolated and out of character event. He was at worst naive and too trusting. Moreover the PCC did not give any or any sufficient weight to the impressive testimonials that were placed before them at this stage of the proceedings.

[15]Their Lordships are unable to accept counsel's forceful argument. The Committee made it clear that they accepted her submission that the fact that the patient died after taking a major dose of Palfium did not fall within the ambit of their consideration. The Chairman said so expressly when he announced their determination. There was evidence before the Committee, depending how they assessed it, that the appellant had broken the three basic rules of prescribing over the five prescriptions that he issued. By the second consultation it should have been clear that the patient had a problem with the medication he was taking. Dr Dyker was particularly critical of the second prescription issued only seven days after the first. The prescription of 100 tablets of Lorazepam on this occasion was excessive. The combination of Dihydrocodeine, Lorazepam and Palfium was a dangerous combination. The prescribing as a whole was excessive and appears to have been at the patient's request and therefore inappropriate. Accordingly their Lordships are satisfied that the PCC's finding was fully justified and for the succinct reasons given:

"Doctors are expected to exercise their prescribing privileges with the utmost care and, probity. The GMC publication 'Good Medical Practice' (July 1998) clearly states that in providing care doctors must 'prescribe only the treatment, drugs, or appliances that serve the patient's needs'. It further states that good clinical care must include 'an adequate assessment of the patient's condition, based on the history and clinical signs, and if necessary appropriate examination'. You had inadequate knowledge of this patient's medical history before prescribing large quantities of addictive drugs to him."

Given the admissions, the appellant's inadequate records of the consultations and the expert evidence their Lordships are satisfied that a finding of serious professional misconduct was inevitable - indeed it would have been surprising if the PCC had determined otherwise. The Conditions:

[16]Miss O'Rourke submitted that the condition that the appellant should not prescribe "Controlled drugs" was disproportionate and oppressive given that the conduct related to one patient, who was a liar, and where there was no justification for restricting his prescribing in a job where he supervised others and had worked for 20 years with glowing references and testimonials. The effect has been that he was dismissed from his job as a medical officer in a private hospital. He is virtually unemployable and the condition should have been confined to his private practice. There was no complaint about the other three conditions.

[17]Their Lordships decline to interfere with the sanction imposed. The condition was sensible and by no means oppressive. Even in private practice he might again be vulnerable to a situation similar to that which existed in the current case, and the condition was designed to prevent this from happening. The effect of the condition was not to punish the doctor but to assist him and minimise the risk from and to patients of this calibre. The twelve month period has already run for nearly six months. It is possible for him to return to the GMC and to ask for variation should he be offered potential employment. Accordingly their Lordships are not persuaded that the condition was in any sense oppressive and should be removed or modified in any way. Conclusion:

[18]For these reasons their Lordships concluded that there is no substance in this appeal. They will humbly advise Her Majesty that the appeal should be dismissed and that the appellant should pay the respondent's costs of the appeal.