Donnelly v. General Medical Council (GMC) [2003] UKPC 74

Judicial Committee of the Privy Council

Case No Privy Council Appeal No. 17 of 2003

Venue FROM THE PROFESSIONAL CONDUCT COMMITTEE OF THE GENERAL MEDICAL COUNCIL REASONS FOR REPORT UPON A PETITION TO DISMISS AN APPEAL FOR NON-PROSECUTION OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL OF THE 2nd October 2003,

Between

DonnellyAppellant

General Medical Council (GMC)Respondent

Before

Lord Bingham of Cornhill

Lord Browne-Wilkinson

Lord Hope of Craighead

Date 3 November 2003

[1]:- Lord Bingham of Cornhill Lord Browne-Wilkinson Lord Hope of Craighead [Delivered by Lord Hope of Craighead ] This is a petition by the General Medical Council ("the respondent") to dismiss an appeal by Dr Michael Donnelly ("the appellant") for non-prosecution. At the end of the hearing on 2 October 2003 their Lordships indicated that, for reasons to be given later, they would humbly advise Her Majesty that the petition should be granted and that the appeal should be dismissed for want of prosecution. The following are the reasons for this advice.

[2]The following history provides the background to this appeal. On 6 February 2003, following a hearing held on 7-9 October 2002 and 4-6 February 2003, the Professional Conduct Committee found that the appellant was guilty of serious professional misconduct. The Committee directed that his name be erased from the medical register. The charges which formed the basis for their determination included(a) the appellant's conviction in the Sheriff Court, Dundee of a breach of the peace by harassing a woman and her family,

(b) his conviction in the Crown Court at Teesside on three counts of dishonestly obtaining a pecuniary advantage by falsely representing that he was a registered medical practitioner when his registration as a medical practitioner had been suspended,

(c) his unauthorised absence from work while employed as a public health consultant, and the giving of an explanation for that absence which was misleading and intended to mislead and

(d) his failure to make appropriate disclosures as to his employment status in a series of job applications with the intention of misleading the persons to whom the applications were addressed.

[3]On 5 March 2003 the appellant presented an appeal to the Privy Council against this determination. A copy of the petition of appeal was served on the respondent on 14 March 2003. At that time Messrs Radcliffes Le Brasseur, solicitors, were acting on the appellant's behalf. In terms of rule 5 of the Judicial Committee (Medical Rules) Order 1980 the parties' cases were required to be lodged by 2 May 2003. On 30 April 2003, following discussions between the parties' solicitors, the respondent sought and was granted an extension of time for the lodging of its case of two weeks to 16 May 2003. This was to save costs while the appellant considered with his solicitors whether he wished to proceed with his appeal.

[4]In the event the appellant did not withdraw his appeal. The respondent's case was duly lodged within the time limit. The appellant's case was not. No steps were taken either by him or his solicitors to lodge his case by 16 May 2003. Reminders were sent to the appellant's solicitors by the respondent's solicitors. On 5 June 2003 the appellant's solicitors wrote to the respondent's solicitors informing them that the appellant was to meet with counsel on 13 June 2003 following which, it was said, the position would be clarified. On 1 July 2003 the registrar wrote to the appellant's solicitors pointing out that the appellant's case was overdue and that he was at risk of an application for the dismissal of the appeal for non-prosecution. The registrar did not receive a reply to his letter from the appellant's solicitors. But on 24 July 2003 the appellant informed the registrar by telephone that he was pressing his solicitors to lodge the case on his behalf.

[5]Rule 10 of the Judicial Committee (Medical Rules) Order 1980 provides:

"If the appellant does not lodge his case within the period prescribed by rule 5, or within such further period as may be allowed by the Registrar, the Council may lodge in the Registry a Petition to Her Majesty in Council praying that the appeal be dismissed for non-prosecution."

[6]On 31 July 2003 the respondent lodged its petition to dismiss the appeal for want of prosecution. On 5 August 2003 the appellant telephoned the registry to ask whether he ought to lodge his case. He was told that there was little point in his doing so at that stage, as a petition for the dismissal of his appeal had already been lodged. By letter dated 20 August 2003 his solicitors informed the respondent's solicitors that they had forwarded the petition to the appellant, as they were without instructions. On 2 September 2003 the appellant lodged a document with the registrar which was headed "Grounds for the appeal petition". He was told that it would be treated as his case. But he was also told that a date had already been fixed for the hearing of the respondent's application for the dismissal of his appeal. The respondent received a copy of this document on 9 September 2003.

[7]The appellant, who appeared in person at the hearing of the respondent's application, said that he had made it clear to his solicitors that he wished to proceed with his appeal. Whether they were willing to do as he asked was, as he put it, another matter. When it became clear to him that they had not done so, he had proceeded as best he could to draw up the necessary document himself. He had now lodged it together with an accompanying skeleton argument. He insisted that there had been no lack of diligence on his part. The explanation for the delay lay in poor communication on the part of his solicitors. It had been compounded by lack of funds on his own part resulting from his prolonged suspension from medical practice.

[8]Their Lordships are not persuaded that the delay in the lodging of the appellant's case in itself provides a sufficient ground for the dismissal of his appeal. They are conscious of the fact that they have not seen all the correspondence passing between the appellant and his solicitors. They have noted that the appellant's solicitors' position as at 20 August 2003 is that they were without instructions. But they are not in a position to say how this came about, or to conclude that the blame for the delay lies wholly with the appellant. They would not wish to deprive the appellant of the opportunity of presenting his appeal on the ground of mere delay if they were persuaded that there was a point of substance which he wished to raise. In this situation the question whether the appeal should be dismissed at this stage must depend on whether it has any prospects of success.

[9]It was conceded by the appellant's counsel during the hearing before the Professional Practices Committee that, having regard to the totality of the charges against him which had been admitted and found proved, he was guilty of serious professional misconduct. Their Lordships consider that this concession was inevitable in the light of the facts. The appellant has not sought to reopen this issue. He has made it clear in the document which he has now lodged that his appeal is directed instead to the question whether the sanction that was imposed on him was disproportionate. The appellant has also suggested that the chairman of the Professional Conduct Committee comes from a different political background in Northern Ireland, that she may have been aware of a previous appeal by him to the Northern Ireland High Court and that for these reasons she may have been biased against him.

[10]Their Lordships can find no substance in the appellant's suggestion that there was a possibility that the chairman of the Professional Conduct Committee was biased. As the respondent has pointed out, this allegation is based entirely on speculation. It is not suggested that she said or did anything in the course of the hearing, or at any other stage in relation to it, which might give rise to the suspicion that this was the case. Their Lordships have been shown a statement by her which makes it clear that she had no prior knowledge of the appellant or of his background. She says that she was not aware of any problems which he had faced in Northern Ireland until the appellant himself raised them in the course of the hearing before the Committee. There is no contrary evidence.

[11]As for the question whether the sanction which was imposed on the appellant was disproportionate, their Lordships consider that on the facts of this case the sanction of erasure from the medical register was inevitable. The appellant said that he had already served his punishment for the offences of which he had been convicted by the criminal courts, that it had not been alleged against him that he had put the lives or health of any patients at risk and that it would have been a sufficient sanction for his registration to be suspended for a suitable period. But is well established that the primary purpose of proceedings under section 36(1) of the Medical Act 1983 is not to punish but to protect the public, to maintain confidence in the medical profession and to maintain appropriate standards on the part of medical practitioners. The Committee considered whether a period of conditional registration would be sufficient for these purposes. They found that it was not possible to draw up a suitable regime of conditions which would be proportionate and enforceable. They were also of the opinion that the appellant had demonstrated a flagrant disregard for the system of registration and that, in view of his breach of the suspension order, he could not be trusted to comply with a conditional registration. It has been said many times that the Professional Conduct Committee is best placed to decide what is required to protect the public and to maintain public confidence in the practising members of the medical profession. Their observations about the appellant's lack of probity and its consequences give added weight to the decision which they reached. Their Lordships have concluded that the appeal has no prospects of success.

[12]For these reasons their Lordships are of the opinion that the appeal ought to be dismissed for want of prosecution. The appellant must pay the respondent's costs before the Board.