Malkhandi v. General Medical Council (GMC) [2003] UKPC 73

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 29 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 6th October 2003,

Between

MalkhandiAppellant

General Medical Council (GMC)Respondent

Before

Lord Steyn

Lord Hope of Craighead

Sir Andrew Leggatt

Date 29 October 2003

[1]:- Lord Steyn Lord Hope of Craighead Sir Andrew Leggatt [Delivered by Lord Hope of Craighead ] At the conclusion of the hearing on 6 October 2003 their Lordships agreed humbly to advise Her Majesty that the appeal ought to be dismissed and that they would give their reasons later. This they now do.

[2]This is an appeal by Dr Bibhuti Bhusan Malkhandi ("the appellant") under section 40 of the Medical Act 1980 against a determination by the Professional Conduct Committee ("the PCC") of the General Medical Council ("the respondent") made on 29 November 2002. The PCC found that he had been guilty of serious professional misconduct. They decided that his name should be erased from the register of medical practitioners. They also directed that his registration should be suspended immediately.

[3]There were four charges against the appellant, which related to two separate incidents. The first incident (charges 1 and 2) occurred on 13 October 1997, when the appellant was a principal medical practitioner and was at home on sick leave. He was telephoned at his home by the daughter of his patient Mrs A. Her daughter told him that her mother was suffering pins and needles, that she could not move on one side and that she was dribbling. The symptoms which were described to him required an urgent home visit or admission to hospital. He did not make either of these arrangements. The charge stated that the appellant's arrangements for dealing with telephone calls while he was on sick leave were inadequate, and that his response to the daughter's telephone call was inadequate also.

[4]The appellant retired from practice in 1998, following a review of his physical and mental well-being. He did so before the respondent could take proceedings against him to assess his fitness to continue in practice as a medical practitioner.

[5]The second incident (charges 3 and 4) occurred on 2 May 2000. By that date the appellant had resumed practice and was working for Liverpool Medical Deputising Service. It was in his capacity as a locum that he visited a patient named Mrs Roberts at her home. Mrs Roberts, who had a long history of pain in her back, had had a sudden onset of severe back pain. Without having obtained a detailed history from her or conducted an adequate physical examination, he prescribed for her a cyclimorph injection and fentanyl patches. He suggested that she should ring the out of hours service to receive the treatment he had prescribed. When Mrs Roberts rang the out of hours service and told them what had happened the appellant visited her again at her home. When he was asked by her daughter how Mrs Roberts was to obtain her injection he said that she should dial 999. The charge stated that the appellant did not arrange for the treatment that he had prescribed, that his prescriptions were inappropriate and that his advice to the patient was inadequate.

[6]The hearing at which these charges were considered by the PCC began on 8 May 2002. At the start of the hearing an application was made by counsel on the appellant's behalf under rule 47 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order 1988 (SI 1988/2255) for the hearing to be adjourned to enable the appellant to apply for voluntary erasure from the medical register. The Committee were told that he no longer wished to practise due to his health problems. The PCC decided that it was in the public interest for the hearing to continue, and they proceeded to hear evidence. Having heard evidence they held that all the charges against the appellant had been admitted or had been proved.

[7]On 11 May 2002, having concluded that the facts admitted or proved were not insufficient to support a finding of serious professional misconduct, the PCC decided to refer his case to the respondent's Health Committee under rule 51 of the Procedure Rules as it appeared to them that the appellant's fitness to practise might be impaired due to his physical or mental condition. On 14 August 2002 the Health Committee decided that the appellant's fitness to practice was not seriously impaired by reason of his physical or mental condition. His case was referred back to the PCC, which resumed consideration of his case at a hearing which was held on 29 November 2002 and then made the determination against which the appellant has now appealed.

[8]The appellant's conduct of his appeal has left much to be desired, and matters have now been brought to a head by the fact that when it came before the Board for hearing on 6 October 2003 he did not appear to present his appeal. Their Lordships were informed that he had submitted a request in writing for the hearing of the appeal to be adjourned to a later date. Counsel for the respondent invited their Lordships to refuse his request for an adjournment in all the circumstances, and he submitted that the appeal should be dismissed. In order to set the scene for the decision which their Lordships have thought it proper to reach as to the appellant's request it is necessary for them to say a little more about the history of the appeal.

[9]The appellant did not lodge his petition of appeal in the Registry within the period of 28 days prescribed by rule 2 of the Judicial Committee (Medical Rules) Order 1980 (SI 1980/873) which expired on 30 December 2002. On 28 March 2003 he wrote to the Registrar stating that he had sent a petition of appeal from India on 20 December 2002. He enclosed with his letter a copy of a letter sent by Messrs Radcliffes Le Brasseur, solicitors, dated 6 January 2003 which informed him that they were not instructed to act on his behalf and that a petition of appeal would have to be lodged with the Privy Council. On 7 April 2003 the Registrar wrote to the appellant saying that he would be prepared to register his appeal on the basis that the petition went astray in the post if the appellant were lodge his petition in proper form supported by an affidavit of the posting of the original petition. On 14 April 2003 the appellant sent the required documents to the Registrar. His appeal was registered on 17 April 2003.

[10]The appellant failed to lodge his case within the 28 day period prescribed by rule 5 of the Medical Rules. That period began with the date of the lodgment by the respondent of the record in the Registry and it expired on 4 June 2003. On 6 June 2003 the appellant wrote to the Registrar enclosing a few miscellaneous documents, but there was no covering explanation as to why they were being sent. On 12 June 2003 the Registrar wrote to the appellant reminding him that his case was overdue. On 20 June 2003 he wrote to the appellant again giving him a further 14 days, until 4 July 2003, to lodge his case. The appellant lodged his case on 10 July 2003.

[11]On 31 July 2003 the Registrar wrote to the respondent suggesting 11 December 2003 as a date for the hearing, no earlier date being then available. He sent a copy of his letter to the appellant. On 4 August 2003 the respondent's solicitor wrote to the Registrar saying that the respondent's counsel was not available on 11 December 2003. She suggested that it be postponed until January 2004. On 7 August 2003 the Registrar informed the respondent that, as a result of the withdrawal of another appeal, the possibility had now arisen of hearing this appeal on 6 October 2003. He sent a copy of this letter also to the appellant. On 11 August 2003 the respondent's solicitor wrote to the Registrar confirming that the date of 6 October 2003 would cause the respondent no difficulty.

[12]On 23 August 2003 the appellant wrote to the Registrar stating that he had been in India since 11 July 2003 on personal business and requesting that, as his stay in India might take some time, his case be heard at a later date. On 10 September 2003 the Registrar wrote to the appellant stating that he was not prepared to accede to this request. He explained that the rules make it clear that appeals under the Medical Act 1983 should be dealt with expeditiously. He said that, in view of all the delays that had taken place since November 2002 when the determination was made, the hearing would proceed on 6 October 2003. He told him that if he did not appear in person or by counsel or solicitor advocate his appeal might be dismissed.

[13]The appellant replied to the Registrar's letter of 10 September 2003 by letter dated 20 September 2003, in which he stated:

"With reference to your notice dated 10 September 2003, I have to state that previously the date of hearing of the above appeal was fixed in January 2004 according to the convenience of both the Appellant and the Respondent with your kind approval and on that understanding I had come to India on account of an urgent piece of business. Now I am down with influenza and very weak. I shall have to take rest some time after recovery. It is, therefore, impossible for me to attend the above case for hearing on 6 October 2003."

He explained that he had no counsel or solicitor advocate. He said that he would appear in person at the time of the hearing, which he asked to be adjourned until January 2004.

[14]Their Lordships observe that the appellant's assertion in his letter of 20 September 2003 that he had gone to India on the understanding that the hearing of the appeal had been fixed for January 2004 does not sit easily with the statement in his letter dated 23 August 2003 that he had been in India since 11 July 2003 on personal business. It was not until 31 July 2003 that the Registrar wrote to the parties suggesting a date for the hearing. The date which he suggested in that letter was 11 December 2003. The possibility of a hearing in January 2004 was raised by the respondent's solicitor in her reply. But it was never taken up, as by the time her reply was received by the Registrar the date of 6 October 2003 had become available. At no time was a date fixed for the hearing of the appeal in January 2004.

[15]Their Lordships are not persuaded that the appellant has put forward sufficient grounds for an adjournment of the hearing of his appeal. They have had regard to the time which has elapsed since the date of the determination and the need in the public interest for appeals under the 1983 Act to be dealt with expeditiously. They have had regard too to the fact that the appellant did not inform the Registrar when he lodged his case that it was his intention to travel on personal business to India. If, as he said in his letter of 23 August 2003, his stay in India was likely to take some time he ought to have informed the Registrar before he left this country of his intention so that steps could be taken before he left to identify dates when he would be available for the hearing of the appeal.

[16]The suggestion in the appellant's letter of 20 September 2003 that a hearing of the appeal was originally fixed for January 2004 is not borne out by the facts. Moreover, the appellant's statement that he has been suffering from influenza and is unfit to attend the hearing is not supported by a medical certificate or any other kind of independent evidence. Their Lordships are left with the strong impression that the appellant's purpose is to delay the hearing of his appeal for as long as possible.

[17]Their Lordships would not have wished to refuse an adjournment and dismiss this appeal if it had appeared from the papers which the appellant has put before them that an injustice may have occurred in this case which would remain uncorrected if the appeal were not heard. So they have considered whether the determination was based on a clearly erroneous finding or a material misunderstanding of the evidence which might disclose an error on the part of the PCC warranting an interference with their decision by the Board, or whether there was an unfairness in the hearing which might invalidate its decision. They have had regard also to all the points mentioned by the appellant in his petition of appeal.

[18]All the facts in regard to the first incident were admitted. The crucial facts in regard to the second incident were not, but more than enough evidence was led to justify the PCC's finding that these facts too had been established. Much of the evidence which was before the PCC was directed to the second incident. But, as counsel for the respondent pointed out, the misconduct which was disclosed by the first incident was in itself very serious. Taken together, it is plain that these two incidents provided a sufficient basis for the finding that the appellant had been guilty of serious professional misconduct and for the decision that the appellant's name ought to be erased from the medical register. Their Lordships can find no defect in the procedure that was adopted by the PCC, and they can see no grounds for suspecting that an injustice has occurred in this case.

[19]For these reasons their Lordships decided to refuse the appellant's request for an adjournment and humbly advised Her Majesty that the appeal should be dismissed. The appellant must pay the costs of the appeal.