Misra v. General Medical Council (GMC) [2003] UKPC 7

Judicial Committee of the Privy Council
Case No Privy Council Appeal No. 43 of 2002Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL
Between
MisraAppellantGeneral Medical Council (GMC)Respondent
Before
Lord HoffmannLord Scott of FoscoteLord Rodger of EarlsferryDate 22 January 2003
[1]:- Lord Hoffmann Lord Scott of Foscote Lord Rodger of Earlsferry [Delivered by Lord Scott of Foscote ] At the conclusion of a three day hearing on 22, 23 and 24 April 2002 the Professional Conduct Committee ("the Committee") of the General Medical Council ("the GMC") found the appellant, Dr Misra, guilty of serious professional misconduct in relation to the facts admitted and those found proved against him and directed that his name be erased from the Medical Register. The Committee further directed that, for the protection of the public, Dr Misra's registration should be suspended with immediate effect (see section 38(1) of the Medical Act 1983, as amended). Dr Misra appeals to the Board against the sentence of erasure. He does not appeal against the Committee's conclusion that he was guilty of serious professional misconduct although he does challenge some of the findings of fact on which that conclusion was based. Background[2]At the material times Dr Misra was a practitioner in general practice at the Greenhill Rise Medical Centre, Corby, in Northamptonshire. He had joined the practice in 1983, four years after his arrival in the United Kingdom. In 1990 his senior partner retired. He employed a Dr Howton as an assistant general practitioner but in 1996 Dr Howton had to retire because of ill health. Thereafter he practised as a sole practitioner. The events which form the basis of the charges against Dr Misra took place in July 1997.[3]At the time of Dr Howton's retirement the list size of the practice was 3500 or thereabouts. In July 1997 it was about 3200. Dr Blaney, a witness called by the GMC, told the Committee that at that time the average list size in England and Wales for a sole practitioner was 1800. It was not Dr Misra's choice that he was a sole practitioner. He had advertised, unsuccessfully, for a replacement for Dr Howton.[4]The area in Corby where Dr Misra practised may fairly be described as an area of social deprivation. In short, therefore, in 1997 when the events leading to the charges took place, Dr Misra was an overworked sole practitioner in a socially deprived area with a shortage of GPs.[5]The charges relate to Dr Misra's treatment, or non-treatment, of a 65 year old patient of his, Mrs Anne Berryman. It is clear from British Telecom records that on four occasions over the four days from Tuesday 22 July to Friday 25 July 1997 telephone calls expressing concern about Mrs Berryman's condition were made to Dr Misra's surgery. The calls were made on Tuesday at 2.40 pm, Thursday at 9.09 am and on Friday at 12.39 pm and 3.05 pm. The calls were made by Mrs Berryman's husband, Mr John Berryman, and were taken at the surgery by Dr Misra's receptionist, Mrs Farr.[6]The tenor of these calls, according to Mrs Farr, was that Mrs Berryman was suffering from diarrhoea and nausea and wanted Dr Misra to visit her at home. Mrs Farr's evidence was that on the occasion of each of these calls she informed Dr Misra of the gist of the call. Dr Misra accepts that she told him of the call on Thursday 24 July and of one of the two calls on Friday 25 July but denies that she told him of the call on Tuesday 22 July or of both calls on the Friday. It is common ground that, on being told of the Thursday call, Dr Misra, without telephoning back and inquiring more closely about Mrs Berryman's symptoms and condition, prescribed a drug, Lomotil, for her to take. Dr Misra accepts also that he did not pay her a visit.[7]Mrs Berryman was taken into Kettering General Hospital on 28 July 1997. She died in the hospital on 3 August. It has not been suggested that Dr Misra's failure to visit or to inquire more closely into her symptoms and condition contributed to or hastened her death.[8]It might have been expected that the records maintained at Dr Misra's surgery would have contained references to each of the four telephone calls from Mr Berryman. But not so. Mrs Farr made entries in Mrs Berryman's clinical notes about only two of the calls. The notes were as follows:
"24.7.97. Lomotil 2 stat 1QDS 20 AM. Patient requesting visit for diarrhoea and sickness Prescription given No visit." and "25.7.97 PM Telephone call received from Mrs Berryman's husband. Says his wife is very ill. Very sleepy. Dr Misra still refuses visit for sickness and diarrhoea. Told to let wife sleep. Come to surgery Saturday morning."
[9]Mrs Farr gave evidence about these notes. She said that the first two lines of her 24 July note were written contemporaneously but that the rest of the note was added after Dr Misra had asked her, probably on Tuesday 29 July, to record all the telephone calls from Mr John Berryman requesting a home visit for his wife. As to the 25 July note, Mrs Farr was uncertain as to when it was made. She said that "PM" indicated that the telephone call had been made in the afternoon. But the British Telecom records show that both the 25 July telephone calls were post noon.[10]Mrs Farr said, also, that she remembered Mr Berryman telephoning earlier in the week than 24 July and that she would have informed Dr Misra about it. She insisted that she would have informed Dr Misra about each telephone request for a home visit. She said that her recollection was that Mr John Berryman's requests that Dr Misra visit his wife were "practically daily" and that there had been more than two such requests. However she was unable to provide an explanation as to why, after being asked by Dr Misra to make a record of all requests for a home visit to Mrs Berryman, she had recorded only two.[11]On 18 September 1997 Mrs Berryman's son, Ian, wrote to Dr Misra asking, in accordance with NHS complaints procedures, a number of questions including the following:
"2. The records show 2 telephone calls both requesting a visit within the same week. Why do the records only show 2 calls when at least 4 were made?"
[12]Dr Misra's answer to Mr Ian Berryman's question, contained in a letter of 26 September 1997, was as follows:
"Only two calls for a visit are documented in our records, I am sorry I cannot give any more information other than the receptionist who took the call has since left the practice."
[13]In January 1998 there was a meeting between Mr Ian Berryman and Dr Misra. The conversation was recorded by Mr Ian Berryman on an audio-tape. The tape records Dr Misra saying this:
"If the call comes to me, I mean if I don't get the call then I can't see anybody, but ultimately that girl in question on one Friday night did not answer the telephone calls at all and I had to ask her to leave and she took me to ACAS and I said 'you take me to Timbuktu but if I lose my livelihood just by not answering the telephone calls which was totally your duty then I'm not keeping you here'. So we went to ACAS and then there was all this sort of thing and then they said 'why don't you give her 2 weeks money and forget the hassle and all that'. I said 'OK I'll give her two weeks' and that is how we got rid of that person'."
[14]Two years or thereabouts elapsed before Mr Ian Berryman made a complaint to the GMC and the GMC, by letter to Dr Misra of 20 January 2000, informed Dr Misra of the complaint. The GMC's letter enclosed a copy of Mr Ian Berryman's complaint. Unfortunately their Lordships' papers do not include a copy but its gist can be sufficiently gleaned from the letter in response dated 14 March 2000 written on Dr Misra's behalf by solicitors, Le Brasseur J Tickle. The letter implicitly accepted that four telephone calls had been made to the surgery between 22 and 25 July 1997 but repeated the assertion that Dr Misra had been informed of only two of them:
"Only two of the four telephone calls made to Dr Misra's practice between 22 and 25 July 1997 were brought to Dr Misra's attention … He was not made aware of the first telephone call on 22 July and when his receptionist told him on 24 July that Mrs Berryman was suffering from diarrhoea, he prescribed Lomotil ..." and "
Dr Misra was advised the following morning on 25 July that the diarrhoea was no better … Dr Misra was not advised of a further telephone call concerning Mrs Berryman that afternoon."[15]The terms of the charge against Dr Misra of serious professional misconduct were communicated to him by the GMC by letter dated 4 July 2001. Many of the allegations against Dr Misra contained in the charge were admitted by him. The terms of the charge were as follows (with those allegations admitted by Dr Misra underlined):
"1. At the material times you were responsible for the general medical care of Mrs Anne Berryman, a patient registered on your NHS list ; 2. a. On or about 21 or 22 July 1997 Mrs Berryman's husband telephoned your practice to request a home visit for his wife, b. Mr Berryman indicated that his wife was, i. suffering from nausea, diarrhoea and a high temperature, ii. unable to attend the surgery. c. You were informed of the request, d. You did not visit Mrs Berryman at her home , e. You did not telephone Mrs Berryman or her husband to discuss her symptoms ; 3. a. On or about 24 July 1997 Mr Berryman again telephoned your practice to request a home visit for his wife , b. You were informed of the request , c. You did not visit Mrs Berryman at her home , d. You did not telephone Mrs Berryman or her husband to discuss her symptoms , e. You prescribed Lomotil on the basis of the information given to a member of your practice staff , f. You did not personally record in Mrs Berryman's notes your prescription for Lomotil and your justifications for the actions you took in response to the request for a home visit , 4. a. On or about 25 July 1997 Mr Berryman again telephoned your practice on two occasions to request a home visit for his wife, b. You were informed of the requests, c. You did not visit Mrs Berryman at her home , d. You did not telephone Mrs Berryman or her husband that day or at any later date to discuss her symptoms , 5. a. Prior to prescribing Lomotil on 24 July 1997 you failed to place yourself in a position to make an adequate and secure clinical assessment of Mrs Berryman's health , b. After prescribing Lomotil on 24 July 1997 you failed to i. adequately monitor Mrs Berryman's clinical progress . ii. Make an adequate and secure clinical assessment of Mrs Berryman's heath ; 6. a. In January 1998 you met with Mrs Berryman's son, Ian Berryman, to discuss your treatment of his mother , b. You told him that you had not been made aware of all the requests for a home visit which had been made between 21 or 22 July and 25 July 1997 , c. You attributed this to omissions on the part of your then receptionist, [Mrs Farr] , d. You knew this information to be untrue; 7. a. On 14 March 2000, Le Brasseur J Tickle solicitors wrote to the General Medical Council on your instructions, setting out your comments on Mr Ian Berryman's complaint against you , b. You indicated that you had not been made aware of all of the requests for a home visit which had been made between 21 to 22 July and 25 July 1997 , c. You attributed this to omissions on the part of the practice ancillary staff , d. You knew this information to be untrue. And that in relation to the facts alleged you have been guilty of serious professional misconduct."
[16]The admissions made by Dr Misra might well have sufficed for the purpose of substantiating a charge of serious professional misconduct. But the GMC set out to prove also the allegations that were not admitted. It is convenient to rehearse what they were:(i) The fact that a telephone call about Mrs Berryman had been made to the surgery on 22 July 1997 was not in dispute. The BT records showed that the call had been made. But the alleged content of the call was not accepted by Dr Misra. And he denied that he had been informed of it.(ii) Dr Misra accepted that two calls had been made to his surgery on 25 July. Here again, the BT records were conclusive. But he denied having been informed of more than one call. He accepted that in the one call of which he had been informed a request for him to visit Mrs Berryman had been made.(iii) Dr Misra denied that he had given Mr Ian Berryman information which he (Dr Misra) knew was untrue.(iv) Dr Misra denied that the information given by his solicitors in their letter to the GMC of 14 March 2000 was information that he knew to be untrue.[17]Their Lordships find the inclusion in the charge of allegations that Dr Misra gave information he knew to be untrue rather puzzling. The substantive allegations against Dr Misra were that he had been informed of each of the four telephone calls and requests for home visits. Dr Misra had admitted being informed of only two of them. So there was a substantive issue as to whether he had been informed of the other two. If he were to maintain his denial at the hearing and be believed that would be an end of the issue. If his denial were to be disbelieved then the Committee would have to consider his conduct regarding Mrs Berryman on the footing that he had received four requests to visit her but had failed to do so and on the footing also that he had lied on oath about two of the telephone calls. What the GMC's point was in adding to the charge first an allegation that he had earlier told the same lie to Mr Berryman and secondly that the lie had been repeated in his solicitor's letter to the GMC is not clear. Their Lordships enquired of Mr Greene, counsel for the GMC, whether it was a general GMC practice where charges of professional misconduct were being made to add to the factual allegations on which the charges were based an allegation of dishonesty in the event that the respondent doctor had had the temerity to deny any of the factual allegations. Counsel told their Lordships that it was not the general practice and that he was not aware of a previous case where that had been done. No explanation of why it was thought right to add the allegations of dishonesty in the present case was offered. In their Lordships' opinion the addition of the allegations of dishonesty in the present case was unnecessary and oppressive. The allegations added nothing to what would have been shown to be the degree of culpability of Dr Misra if the substantive allegations that he had declined to admit were found proved against him.[18]A matter of background, not referred to in the charge but which loomed large at the hearing before the Committee, relates to Dr Misra's history of alcoholism. There was a considerable history, to which further reference will be made later. This history was known to the GMC and, after the Committee had found Dr Misra guilty of serious professional conduct, Mr Greene, counsel for the GMC both at the hearing and on this appeal, very properly placed the details before the Committee so that it could be taken into account by the Committee in deciding what sanction to impose on Dr Misra. But the history was not relevant to the charge that Dr Misra was facing. He was not charged with having failed to visit Mrs Berryman because he was under the influence of alcohol. Nor was he charged with being regularly under the influence of alcohol while on duty as a doctor. His problems with alcohol, capable of being highly prejudicial to the view of him taken by the Committee, ought to have been kept in the background and disclosed to the Committee only in the event that they found the charge of serious professional conduct to be proved. But, unfortunately, that is not what happened.[19]The hearing before the Committee took place on 22, 23 and 24 April 2002. Mr Greene called two ex-employees of Dr Misra as his first two witnesses. The first was Mrs Trzaskalski, who had been employed by Dr Misra from December 1995 to November 1998, first as receptionist and then as his secretary. Mr Greene elicited evidence from her about Dr Misra's consumption of alcohol at lunchtime and in the evenings when going out with medical representatives and about his reluctance to undertake home visits when these occasions were pending. (see Day 1, p 12). There was no attempt to relate this evidence to Dr Misra's failure to visit Mrs Berryman. The line of questioning was taken up by the Committee. Dr Jay, a member of the Committee, referred to Mrs Trzaskalski's evidence about "hospitality events" and asked: "Q. So far as you were aware, were there any other occasions when he might have been taking alcohol? A. Yes. He would take alcohol on the premises." (Day 1, p 14).[20]These questions were not objected to by counsel appearing for Dr Misra. In their Lordships' opinion they ought to have been for they were irrelevant and prejudicial. But it is not easy, perhaps because it is often perceived to be potentially damaging to the client, for an advocate to object to a line of questioning from the tribunal and counsel for Dr Misra tried to deal with the problem by further cross-examination of the witness.[21]The GMC's second witness was Mrs Farr. She told Mr Greene that she became Dr Misra's receptionist in October 1996. The examination then continued as follows: "Q. How did you meet Dr Misra? A. I was a barmaid in a local pub that Dr Misra drank in. I got to know him quite well, so when I left the pub he offered me a job. Q. How often would you see him in the pub? A. Every day. Q. At what time of day? A. It was lunchtime I saw him, between surgery and closing hours. Then he would sometimes pop back in the evenings." (Day 1, p 18)[22]Later Mr Greene asked questions about Dr Misra's general reluctance to undertake home visits. "Q. Was there any particular reason that you could see as to why Dr Misra would not go on home visits? A. His attitude was 'If you are that ill that you cannot come to the surgery, go to hospital'. He always went out at lunchtime. He always went to the pub at lunchtime. Q. He always went to the pub at lunchtime? A. Yes. Q. In what condition did he return from the pub? A. It would depend on different days. I have seen him return very drunk." (Day 1 p 20).[23]A consequence of the questioning of the first two witnesses to which their Lordships have referred is that Dr Misra's general drinking habits became established as an issue in the case. When Dr Misra came to give evidence he was asked questions in examination in chief about this. No doubt his counsel felt obliged to ask these questions in order to try and counter the prejudicial effect of the evidence of Mrs Trzaskalski and Mrs Farr. And when Mr Greene came to cross-examine Dr Misra, the first three pages of the transcript of his cross-examination are largely devoted to this non-issue.[24]In his closing address to the Committee Mr Greene stressed the evidence about Dr Misra's drinking. He submitted that it showed Dr Misra had a severe drinking problem and had told lies to the Committee about the quantity of alcohol that he was in the habit of consuming on a regular basis. Mr Greene ended his remarks on Dr Misra's alcohol problems thus:
"We submit that he told this Committee a pack of lies about that part of his evidence and his credibility is seriously in question."
[25]The prejudicial potential of the introduction into the case of Dr Misra's alcohol problems is apparent from the above cited submission.[26]The factual issues in the case were in reality simply whether Dr Misra had or had not been informed by Mrs Farr of the telephone call on 22 July and of two telephone calls on 25 July. As to the telephone call on 22 July the Committee found that Mr Berryman had indeed telephoned and had requested a home visit for his wife. They held that Mr Berryman had said that his wife was suffering from diarrhoea and nausea. They found "not proved" the allegation that Mrs Farr had informed Dr Misra of the request for a home visit. In their Lordships' view, it must follow that the Committee were not satisfied that Mrs Farr had informed Dr Misra of this telephone call.[27]In view of the Committee's conclusions regarding the 22 July telephone call, the two telephone calls on 25 July became, from Dr Misra's point, particularly important. If the allegation that he was informed of both calls were to fall away, so too would the allegations of dishonesty disappear. Mr Greene, naturally, invited the Committee to accept Mrs Farr's evidence that she had informed Dr Misra of each of the calls. But Mrs Farr had only noted one of the 25 July telephone calls in the clinical notes. She had accepted in cross-examination that early in the next week she had been particularly asked by Dr Misra to record in the clinical notes every call that Mr Berryman had made requesting a visit for his wife. Mr Greene in his address to the Committee stigmatised this request by Dr Misra as an attempt "retrospectively to cover his tracks". This suggestion makes no sense at all. A request for a note to be made of the telephone calls is the reverse of an attempt at a cover-up. It is consistent with an attempt to make sure that there was a record of every telephone call received. Mr Greene suggested also that the destruction in 1998 of a notebook or diary (descriptions differed) in which entries of the telephone calls might have been found, might have been part of a cover-up (Day 2, p 26) but the Legal Assessor very properly advised the Committee that there was no evidence to enable the Committee to conclude that there was any sinister purpose in its destruction.[28]The Committee's conclusion that Dr Misra had been informed by Mrs Farr of both 25 July telephone calls shows that on this issue they preferred Mrs Farr's evidence to that of Dr Misra. It cannot be said that there was no evidence enabling them to come to that conclusion and, ordinarily, a fact-finding tribunal's view of the credibility of witnesses on a particular issue would not be reversed by the Board.[29]Mr Hockton, counsel for Dr Misra before the Board (but not before the Committee) drew their Lordships' attention to three particular matters which, he suggested, might detract from the cogency of Mrs Farr's evidence. First, he pointed out that her evidence had included the statement that Mr Berryman had telephoned every day for a week (Day 1, p 24F "my memory of it is that he rang every day" and p 30E "there had been a daily request for a week"). It is clear, however, that Mr Berryman did not telephone the surgery on Monday 21 July, Wednesday 23 July or Saturday 26 July. So Mrs Farr's memory was not entirely accurate.[30]Secondly, Mr Hockton pointed out that Mrs Farr's employment had come to an end on 15 August 1997, that she told the Committee that she resigned of her own accord but that her departure appeared to have been a consequence of a number of mistakes she had made (Day 1, p 21). The third matter to which Mr Hockton referred was that in and shortly after 1998 Mrs Farr had contacted Mr Ian Berryman and that it was as a result of what she had told him that he decided to make his complaint to the GMC (Day 1, pp 46/47). So, Mr Hockton pointed out, Mrs Farr had prompted the complaint.[31]In addition Mr Hockton made the following points:(i) The issue regarding the 25 July telephone calls was not in any sense a technical issue. It was simply an issue of credit;(ii) the Committee might have been influenced by the groundless cover-up suggestions made by Mr Greene; and(iii) the Committee might have been influenced by the irrelevant evidence relating to Dr Misra's drinking habits.[32]The last point is, in their Lordships' opinion, the one that carries the most weight. Their Lordships accept that where the issue turns on credit an appellate tribunal ought not ordinarily to interfere with the view of the witnesses formed by the fact-finding tribunal. But the impression left upon their Lordships by the manner in which the evidence about Dr Misra's drinking habits was introduced by Mr Greene into the proceedings and in which his drinking habits then became an issue in the case is that both were unfair to Dr Misra. He had not come to the Committee to face allegations about his drinking habits. The evidence adduced about them did not justify a linkage between his drinking habits and his failure to visit Mrs Berryman. But Mr Greene's closing address to the Committee included the following: "For whatever reason, whether it be because he was under the influence of drink, whether because of overwork or laziness he did not go on a home visit …" (Day 2 p 28)[33]The alcohol evidence was used to discredit Dr Misra and it is a fair inference that it was introduced for that purpose. It ought not, in their Lordships' view, to have been so used or introduced. It is impossible to say what view the Committee would have taken of the relative credibility of Dr Misra and Mrs Farr if the alcohol issue had not been introduced. In the circumstances their Lordships have come to the conclusion that the Committee's finding that Mrs Farr informed Dr Misra of both the Friday 25 July telephone calls is unsafe.[34]It follows that the Committee's findings of dishonesty on Dr Misra's part in maintaining to Mr Ian Berryman and, via his solicitors, to the GMC that he had been informed of only two telephone calls from Mr John Berryman cannot be sustained.[35]Mr Hockton has not suggested that a conclusion in Dr Misra's favour on the 25 July telephone calls issue and, consequently, on the dishonesty issue should lead to the finding of serious professional misconduct being set aside. In the Board's view Mr Hockton's restraint is wise. The allegations against Dr Misra that he admitted are well capable of sustaining that finding. Dr Misra failed to give proper attention to the contents of the two telephone calls that he was informed about. The administrative arrangements in his practice for recording and dealing with telephone requests for home visits were inadequate. Mrs Berryman was entitled to expect a much more thoughtful response from Dr Misra to her husband's telephone calls than she received. Her family are entitled to be indignant.[36]The question that must now be answered is what sanction should be imposed on Dr Misra in view of the serious professional misconduct, shorn of the allegations of dishonesty, of which he was guilty. Dr Misra's admitted shortcomings in his treatment of Mrs Berryman do not, in their Lordships' view, warrant erasure. Their Lordships agree with Mr Hockton that erasure in these circumstances would be excessive and disproportionate. Their Lordships consider that, in principle, a sanction of admonishment should be substituted.[37]It is at this point that Dr Misra's history of alcoholism becomes relevant. It is not necessary for present purposes to recite the full history. It suffices to say that Dr Misra was referred to the Health Committee of the GMC following his conviction on 8 July 2001 for driving while over the prescribed limit and that until the erasure sentence was passed by the Committee he remained under the jurisdiction of the Health Committee. On 5 March 2002 the Interim Orders Committee (the IOC) made an order requiring, inter alia, that Dr Misra refrain from all types of medical practice and abstain absolutely from the consumption of alcohol. The order was to be reviewed at a further meeting of the Committee to be held within three months. The intended further meeting was, however, overtaken by the sentence of erasure pronounced by the Committee on 24 April 2002.[38]If on 24 April 2002 the Committee had imposed on Dr Misra the sanction of admonishment, the Health Committee's jurisdiction over Dr Misra would have remained. The Health Committee would have had wide powers under section 37 of the Medical Act 1983 to suspend Dr Misra from practice until such time as his physical and mental condition were such as to make his resumption of practice acceptable.[39]Their Lordships have no doubt that for the protection of members of the public and in Dr Misra's own interests his ability to resume practice should be subject to any powers that the Health Committee may think it right to exercise in respect of him.[40]Accordingly their Lordships will humbly advise Her Majesty that the findings of the Committee referred to in paragraphs 33 and 34 above should be set aside; that the sanction of erasure imposed by the Committee on 24 April 2002 should be set aside and the sanction of admonishment substituted; and that there should be imposed on Dr Misra the condition that he does not resume medical practice of any type until the Health Committee has had an opportunity to gauge whether his fitness to practise still remains seriously impaired by his physical or mental condition and, if so, whether any direction pursuant to section 37 should be made in respect of him. The GMC must pay Dr Misra's costs of this appeal.

Cited in 7 later judgments