Otote v. General Medical Council (GMC) [2003] UKPC 71

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 22 of 2003

Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL

Between

OtoteAppellant

General Medical Council (GMC)Respondent

Before

Lord Walker of Gestingthorpe

Sir Martin Nourse

Sir Philip Otton

Date 21 October 2003

[1]:- Lord Walker of Gestingthorpe Sir Martin Nourse Sir Philip Otton [Delivered by Sir Philip Otton ] Introduction: This is an appeal pursuant to section 40(1) of the Medical Act 1983 (as amended). Between the 20 and 28 February 2003, the Professional Conduct Committee ("the Committee") of the General Medical Council ("GMC") conducted an enquiry into a charge of serious professional misconduct that the appellant had indecently assaulted a nurse, made inappropriate comments to four other nurses and had failed to examine physically three patients. The charge was found proved. The Committee directed that the appellant's registration be suspended. Background:

[2]The appellant, Dr Idowu David Otote, was educated in Nigeria. He qualified MBBS in 1990 in Ibadan. Following qualification he spent a year in Youth Service which is compulsory in Nigeria. Dr Otote then worked in Benin as a House Officer and then as a Medical Officer initially in surgery and subsequently in psychiatry. He remained in psychiatry for three years during which time he undertook postgraduate training and passed the Fellowship examination for both Nigeria and West Africa. Dr Otote moved to Scotland in 1997 and worked as an SHO in psychiatry in Lanarkshire. He completed placements in general adult psychiatry, child psychiatry and the psychiatry of old age. In 1999 he moved to a rotational training post at St Mary's Hospital on the Overseas Doctors Training Scheme ("ODTS"). He had attachments in old age psychiatry and learning disability but has not worked since he was suspended by the Trust in September 2000. This suspension remained in force until the end of Dr Otote's contract in February 2001.

[3]In April 2002 the matter first came before the Interim Orders Committee who suspended the Appellant's registration pending his appearance before the PCC. The Notice of Inquiry

[4]The Notice of Inquiry consisted of the following Heads:

"Head 1 From 29 November 1999 to 18 December 1999 you were employed as a locum Staff Grade Psychiatrist by South Devon Healthcare NHS Trust; Admitted and found proved . Head 2 a On Friday 17 December 1999 at around 20:00 hours you attended Fernworthy Unit at Torbay Hospital to admit a patient, Found proved b Whilst in the Fernworthy Unit you, i told Staff Nurse A that you were distracted by her beauty, Found proved . ii you told Staff Nurse A that she had to take you to the Unit's Christmas party that night, Found proved as amended . iii threatened Staff Nurse A when she refused to take you to the party by saying 'If you don't take me out tonight, I will make sure you don't work in this place again', Found proved . iv touched Staff Nurse A's name badge which is pinned on her chest, Found proved . c Your conduct towards Staff Nurse A was, i inappropriate, Found proved . ii an abuse of your position, Found proved . Head 3 a In the early hours of Saturday 18 December 1999 you left a Christmas party being held at Eric Catford House, Found proved as amended . b Once outside you walked up behind Staff Nurse B and, i. put your arm around her waist, Found proved . ii Once outside you walked up behind Staff Nurse B and clenched her left breast, Found proved as amended . c You pursued Staff Nurse B when she moved away from you and, Found proved . i put both your arms around her, Found proved . ii tightly held her breasts, Found proved iii kissed her on the lips, Found proved . d You received a police caution on 18 December 1999 as a result of this incident, Found proved . e Your conduct towards Staff Nurse B was, i indecent, Found proved . ii had the potential to bring the medical profession into disrepute; Found proved . Head 4 a At the material time you were employed as Senior House Officer in Psychiatry by the East and North Hertfordshire NHS Trust, Admitted and found proved . b On a date in August 2000 in Welwyn Ward at Queen Elizabeth II Hospital you, i asked Nurse C if she was married and she answered that she was, Found proved . ii asked Nurse C if she was happily married and she answered that she was, Found proved . iii asked if you could take her pulse and blood pressure to confirm she was happily married, Found proved . c your conduct towards Nurse C was, i inappropriate, Found proved . Head 5 a On September 2000 at around 16:30 hours in Hatfield Ward Nursing Office at Queen Elizabeth II Hospital you, i asked Nurse D to go with you to Hollybush Day Hospital to take the blood pressure of a female patient, Found proved . ii became verbally aggressive towards Nurse D when she explained that she was not able to leave the ward as she was the only qualified Nurse and you told her you would not help her in the future, Found proved . b Nurse E accompanied you to Hollybush Day Hospital where you told the patient that you needed a second opinion from a doctor for blood pressure due to a Government recommendation, Found proved . c You implied Nurse E was a doctor, Found proved . d You appeared unable to take an accurate blood pressure reading, Found proved . e Your conduct in this regard was, i inappropriate, Found proved . ii below a reasonable professional standard; Found proved . Head 6 a On 2 September 2000 you admitted a patient, Mr P, Found proved . i you failed to physically examine Mr P although an examination was appropriate, Found proved . ii your note taking of the admission of Mr P was very disorganized, Found proved . b Your conduct in this regard was, i inappropriate, Found proved . ii below reasonable professional standards, Found proved . Head 7 a On 15 August 2000 you admitted Mr G, Found proved . b You failed to physically examine Mr G although an examination was appropriate, Found proved . c Your conduct in this regard was, i inappropriate, Found proved ii below a reasonable professional standard, Found proved . Head 8 a On 30 August 2000 you admitted Ms C, Found proved . b You failed to physically examine Ms C although an examination was appropriate, Found proved . i inappropriate, Found proved . ii below a reasonable professional standard, Found proved ."

The Evidence

[5]Before turning to the grounds of appeal it is necessary to summarise the salient parts of the evidence. Head 2 - Nurse A

[6]On 17 December 1999 Staff Nurse A was on duty in the mental health centre. The appellant was the on-call SHO and went to the ward to admit a patient into the ward. Nurse A had never met the appellant before. After initial introductions Nurse A gave the appellant a verbal handover of the patient together with the notes and paperwork. He did not respond but then said he was distracted by her beauty. She felt uncomfortable and intimidated. She was wearing a name badge and he made enquiries about her surname. He tapped the badge with his pen and then reached out as if to touch it whereupon she brushed his hand away and he laughed. He asked whether she was going to the hospital party that night. She said she was. He said that she had to take him with her. She refused. She pointed out that she was a happily married woman and that she had no intention of going anywhere with a stranger. At which point he told her, he was not a stranger, he was a doctor and she should do as he said. The nurse tried to continue with the patient's admission. He said "there is something I want you to listen to and listen carefully. I shall only say this once", that if she did not go out with him that night he would make sure she did not work in the hospital again. Another nurse noticed Nurse A was shaken and subdued after this conversation. Nurse A complained to the locality manager of the South Devon Health Care Trust. Head 3 – Nurse B

[7]Later the same evening Nurse B was at a party in the Torbay Hospital residences. She was there with her boyfriend but left in the early hours of the morning alone. The appellant attended the party. He made an advance to another nurse but desisted when told to do so. When Nurse B left the appellant followed two or three paces behind her and the first nurse followed them. As Nurse B walked she felt a hand on her waist which then went to her breast. She turned and saw a man she had never seen before. She enquired as to what he thought he was doing. He persisted and pulled her towards him. She tried to break his grip. The appellant held her round the waist, held onto her clothes, but she grasped the railings saying that her boyfriend was coming. He touched her breasts again and her bottom and he tried to put his hand in her clothes. She managed to get away from him but he caught her up and pulled her into a dimly lit area. She tried to push him off but she was leant backwards when he tried to kiss her. He kissed her on the lips, and tried to put his tongue inside her mouth. She fell backwards, screamed and shouted for her boyfriend. The nurse was left feeling "Disgusted, horrible, dirty, sick, foul and unpleasant". The first nurse arrived and observed her distress. The police arrived and Nurse B identified her attacker. The appellant was arrested and cautioned. He made no coherent reply but went to his hands and knees and begged for forgiveness, grabbing hold of the officer's legs, which the officer found embarrassing. He was taken to Torquay police station where he was interviewed in the presence of his solicitor and his consultant. On the following day he was given a formal caution in the presence of his solicitor. Head 4 – Nurse C

[8]Nurse C was a registered mental health nurse and employed at Queen Elizabeth II Hospital in Welwyn Garden City. In about August 2000 the appellant was working as a house officer. The nurse was in her office when the appellant approached her. He asked her if she was married and when she said she was he asked whether she was happily married and asked to take her pulse and blood pressure. The nurse was shocked and considered that her privacy had been violated. Head 5- Nurses D and E

[9]About a month later, in the same hospital, Nurse D was the staff nurse on duty. The Appellant asked her to go down with him to see a patient whose blood pressure he wished to take. He wanted Nurse D to give a second opinion of the reading. Nurse D pointed out that she had a terminally ill patient and could not leave the ward. The appellant was annoyed and said to her, "if you are not going to help me, I will not help you in the future". Nurse E was present and described the appellant as desperate and beginning to get verbally aggressive towards Nurse D. She offered to go with him, they went into see the patient whereupon the appellant introduced the nurse to the patient saying that he needed a second opinion from a doctor for blood pressure due to a Government recommendation. The Nurse corrected him and said that she was not a doctor but a nurse. The appellant then attempted to take the blood pressure but bungled the whole procedure. He was unable to manipulate the control valve thus failing to get a reading. He behaved in a bizarre fashion throughout. Head 6

[10]A patient, P, came to the psychiatric unit at the same hospital. The consultant psychiatrist had reviewed his notes. The appellant was the duty doctor and responsible for admitting patients. The notes had no date or time recorded on them; an examination of the patient's mental state was sketchy and incomplete. There was no record of any physical examination when one was indicated. In the consultant's view the notes were "very limited in their scope and they do not give an adequate history as would be expected in a normal psychiatric evaluation. Also, the way they are written is poorly organised and the handwriting is scrappy". In short, they were very far from the standard expected from an SHO psychiatrist. The notes were subsequently examined by two other consultants who formed a similar view. Head 7

[11]A consultant also examined the appellant's notes for "Mr G" who had a history of seizures and Alzheimer's disease. Yet the appellant had failed to conduct a physical examination. The clinical tutor concluded that the notes were below the appropriate standard because there was no physical examination. Head 8

[12]The consultant also examined the appellant's notes for Miss C, an elderly lady who was hypertensive. The appellant had failed to conduct a physical examination. The clinical tutor concluded that these notes were well below the standard expected of an SHO psychiatrist. The Determination:

[13]The appellant gave evidence which was, in summary, a denial of all the allegations against him. Thereafter the Committee heard closing speeches by both parties and received advice from the Legal Assessor. The Committee retired, returned and announced their determination on the facts already indicated above. Finding of serious professional misconduct

[14]Following the determination on the facts, counsel for the respondent addressed the Committee by setting out the appellant's background. In February 1999 he had become an ODTS trainee on psychiatric rotation with the Horizon NHS Trust in Hertfordshire. On 29 November 1999 he started at Torbay Hospital as a locum. Following the events of the 17 December concerning Nurses A and B he resigned from that position on the following day. An alert letter had been sent out as a result of these events. On 14 December 2000, following the matters proved under Heads 4, 5, 6, 7 and 8, he was suspended from the Horizon NHS Trust until February 2001, when his rotation had come to an end. He has not worked since. Submissions and testimonials were placed before the Committee on behalf of the appellant together with a psychiatric report containing the opinion that his fitness to practise was not seriously impaired by reason of a physical or mental state. Father Crampsey gave evidence for the appellant. After further submissions by his counsel, the appellant addressed the Committee directly, explaining that his behaviour might be misconstrued because of his cultural differences.

[15]Later the Chairman announced the decision of the Committee in the following terms: that 'Teamwork is a vital part of modern healthcare. The profession and the public rightly expect the highest standard of professional behaviour and conduct in this setting. The 1998 edition of Good Medical Practice states that doctors are expected to work constructively within teams and to respect the skills and contributions of colleagues. Doctors must not abuse the trust placed in them by their position. It was your responsibility to behave professionally, appropriately and properly as a medical practitioner. You abused your position as a doctor. Your repeated inappropriate behaviour has brought the medical profession into disrepute. The Committee therefore find that you have been guilty of serious professional misconduct. The Committee have carefully considered what action to take in your case. They have considered the submissions made on your behalf including the difficulties of adapting to a new and different culture. The Committee also noted that at the material time you had been practicing medicine in the United Kingdom for two and a half years. They have also considered the question of proportionality. The Committee are concerned about your lack of insight into your repeated inappropriate behaviour and your clinical deficiencies. They considered that it would not be sufficient to conclude the case with a reprimand or conditional registration. The Committee have therefore decided to suspend your registration for a period of one year. The Committee also direct that your case be resumed before the end of that period of suspension. The Appeal The determination of facts and finding of serious professional misconduct

[16]In paragraph 12(e) of the Case for the appellant it is submitted:

"The Committee erred in irregularities of their findings or exaggerated their importance, this had an adverse effect on my being found guilty of serious professional misconduct and subsequent sanction and decisions."

The appellant appeared before the Board in person. He read a prepared speech which enlarged upon his grounds of appeal against these findings. His first complaint was that the PCC had not properly applied the standard of proof required before the adverse determinations and the finding of serious professional misconduct. In essence he asserted that the Committee should have been "sure beyond all reasonable doubt" before finding against him. Secondly, he was critical of the finding that he had fallen "below reasonable professional standards". His conduct, when properly viewed, would not pass that threshold. He was also critical that the Committee retired to consider their deliberations in private without counsel on his behalf being present. He submitted that whatever the shortcomings of his conduct, he was not guilty of serious professional misconduct. He had an impressive academic record, he had never before been at risk to patients or to the public, and these matters should have been taken into account; if they had, then the finding of serious professional misconduct was unsustainable. Moreover the PCC should have taken into account the cultural differences which existed between practice in his native Nigeria and the United Kingdom and due allowance should have been made of this factor in his favour. He also complained that the Committee would have been prejudiced by the fact of his interim suspension pending the hearing. This was clearly inappropriate and not in the interest of his patients and could only have placed him in an unfavourable light with the Committee when they came to make their determination in February 2003.

[17]Their Lordships have considered these matters with great care. They have come to the conclusion that there is no substance in any of them. They are satisfied that there was ample evidence to justify the factual findings. The Committee saw and heard the witnesses and had the opportunity to assess their evidence. The appellant has misunderstood the standard of proof. The PCC were not required to make a finding that "they were sure beyond all reasonable doubt". They were required to be sure or satisfied beyond reasonable doubt (which is the same thing). The Legal Assessor correctly directed them on the standard of proof and it was clear that they applied it correctly. There was sufficient evidence to justify their finding that his conduct in respect of the patients fell below reasonable professional standards. There was no procedural irregularity. The procedure whereby the PCC retire (on occasions with their Legal Assessor) is set down in the rules and well established. Given the determinations it was inevitable that he should be found guilty of serious professional misconduct; even though he had an impressive academic record this did not account for his behaviour. He clearly failed to behave properly as a medical practitioner. He abused his position as a doctor by behaving inappropriately towards nursing staff and thereby, in addition, brought the medical profession into disrepute. The alleged cultural differences were immaterial, the test to be applied is objective. Even if the cultural differences were material their Lordships are not persuaded that his conduct towards the nurses, and in particular Nurse B, would have been condoned in his native country. The interim order of suspension was clearly appropriate in the interest of patients. The PCC are familiar with this procedure and it is inherently unlikely that this fact would have generated any prejudice in the minds of the Committee or in the determination of the facts. The sanction of suspension:

[18]Having announced their decision on the appropriate sanction (cited above) the Chairman of the Committee continued:

"The Committee were very concerned about your clinical deficiencies and lack of interpersonal skills. The Committee therefore indicate that during your period of suspension you should undergo remedial training to be discussed with and co-ordinated by the Postgraduate Dean and with the Regional Advisor for training in psychiatry. This remedial training should include: further development of basic clinical skills in examination and investigation in a fully supervised environment with formal assessment of competence. attendance at a course to develop professional interpersonal relationships practical experience of working effectively in teams. Shortly before the resumed hearing, which will take place just before the end of your period of suspension, you will be asked to furnish the Council with the names of professional colleagues and other persons of standing to whom the Council may apply for information as to their knowledge of your conduct throughout the interval since the hearing of this case. The resumed hearing will expect to receive clear and detailed evidence that you have been formally assessed by appropriate agencies or individuals in the areas listed above. The Committee also expect to receive evidence that you have received formal training in these areas and can demonstrate insight into your shortcomings. The Committee will wish to determine whether the educational and other objectives have been achieved by receiving evidence of formal assessment."

[19]In his Summary Grounds of Appeal the Appellant stated:

"(a) That the PCC erred in making a finding of serious professional misconduct before all the relevant circumstances were considered, only considering those matters when considering sanction. (b) The PCC erred in suspending the Appellant and in effect via their "indication" also requiring the Appellant's registration to be conditional during a period of suspension. (c) That the effect of suspension is to make it impossible for the Appellant to fulfil the remedial training which he will be expected to have undergone prior to the resumed hearing. (d) that the effect of the combination of a suspension with conditions attached although described as indications will thwart the clear underlying intention of the Committee that during the period of suspension of the Appellant should improve and enhance his medical, clinical and interpersonal skills."

In support he drew our attention to a letter to his solicitors from the Dean Director of the London Department of Post Graduate Medical and Dental Education:

"Thank you for your letter of 14th March 2003. I have not yet heard directly from the GMC, although I have made contact and have asked for the Professional Conduct Committee's decision to be sent to me direct. I then intend to write to the GMC expressing my anxieties. From the paperwork that you sent me it would seem that their expectations of the Postgraduate Dean are outwith the guidelines agreed for referrals by the GMC to the Postgraduate Dean. I am not happy that the referral is appropriate given the nature of the offences. I am also concerned that remedial training in basic clinical skills is being proposed without such a referral coming through the performance procedures. I shall be writing to the GMC with my concerns along these lines."

[20]Their Lordships consider that the appellant's primary complaint is misconceived. The Committee was empowered to impose the sanction of suspension, it had no power to suspend the appellant's registration and impose conditions upon it.

[21]Section 36(1) of the Medical Act provides:

"… the Committee may, if they think fit, direct – (i) that [the registered person's] name shall be erased from the register; (ii) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or (iii) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction with such requirements so specified as the Committee think fit to impose for the protection of members of the public or in his interests."

There can be no doubt that the use of the word "or" means that the sanctions are alternative and not cumulative. This is reinforced by Rule 31 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988, which requires the Committee to approach each sanction separately.

[22]Their Lordships accept the submission of Ms Sarah Plaschkes, counsel for the respondent, that there is a fundamental distinction between an "indication" embodied in sub-para (ii) of section 36(1) and a condition imposed under sub-para (iii). In the instant case, after directing that the appellant's registration be suspended, the PCC indicated the steps the appellant should take before the resumed hearing. This indication was intended to assist the appellant. A practitioner who tries to comply with such an indication will be in a better position than a practitioner who has taken no steps to rectify the defects found in his practice. The indication given in this case cannot be regarded as punitive and it is clearly designed to assist the doctor to get back into practice after he has established sufficient insight in his own mind into his shortcomings so as to ensure that they do not re-occur. If it should arise he will be able to submit that it has not been possible to observe or fulfil the indications. It is unfortunate that a letter from the Dean Director of the London Department of Post Graduate Medical and Dental Education is so unpropitious. It is to be hoped that the General Medical Council and this or some other body will be able to provide facilities so that the indication of the way forward can be fulfilled. It would be unfortunate if this impasse were to continue and so prejudice the appellant's opportunity to return to active practice. Their Lordships express the hope that if the indications of the PCC cannot be met then the GMC will arrange an early resumed hearing so that the PCC can deal with the situation and will not be seen to be acting in vain. Conclusion:

[23]Their Lordships will humbly advise Her Majesty that the appeal against the determinations of fact, the finding of serious professional misconduct and the sanction imposed should be dismissed with costs.