Walker v. General Medical Council (GMC) [2002] UKPC 57 (5 November 2002) 

ADVANCE COPY 

	Privy Council Appeal No. 94 of 2001

Steven James Walker	Appellant
	v.
The General Medical Council	Respondent

	FROM

	THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
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	REASONS FOR REPORT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL, OF THE 
	14th October 2002, Delivered the 5th November 2002
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	Present at the hearing:-
			Lord Hope of Craighead
			Lord Walker of Gestingthorpe
			Sir Murray Stuart-Smith
			The Rt. Hon. Justice Gault
			Sir Philip Otton
   [Delivered by The Rt. Hon. Justice Gault]
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1. 	This appeal is against a decision of the Professional Conduct Committee of the General Medical Council which their Lordships refer to hereafter as “the PCC” or “the Committee”.  That Committee, having found the appellant guilty of serious professional misconduct, directed that his name should be erased from the medical register.  The finding of serious professional misconduct was not challenged.  It was the order directing erasure from the medical register that was the subject of the appeal.

2. 	At the end of the hearing of the appeal their Lordships announced that they had agreed, for reasons to be given later, humbly to advise Her Majesty that the direction that the doctor’s name be erased from the register should be quashed and the matter of appropriate sanctions remitted to the PCC, differently constituted and advised by a different legal assessor.  The respondent was ordered to pay the appellant’s costs of the appeal. The following are their Lordship’s reasons.

The Background
3. 	The charge of serious professional misconduct arose from the appellant’s management of twelve separate patients in his first consultant position as Consultant General Surgeon at Blackpool Victoria Hospital over a period of three and a half years from June 1995 to December 1998.  The enquiry into that conduct by the PCC occupied 36 hearing days beginning on 10 September 2001.  The factual findings of the Committee were that some or all of the heads of charge in respect of ten of the twelve patients had been proved.  A brief summary of those findings, which is not comprehensive, is all that is necessary for the present reasons in view of the acceptance of the finding of serious professional misconduct.

4. 	In the case of one patient the appellant performed a liver resection in a district general hospital when he ought to have known that the procedure should only have been attempted in a specialist liver unit.  The appellant performed the procedures when they were beyond the limits of his clinical competence and technical expertise.  During the operation the patient lost approximately seventeen litres of blood and he failed to manage the bleeding effectively.  The patient died within two hours of the operation.  His operation note to the general practitioner was inaccurate and misleading and the information given to relatives was inaccurate.  The appellant subsequently agreed with the Clinical Director of Surgery that he would not carry out any further operations on the right side of the liver.

5. 	The heads of charge in respect of four of the patients were directed to colo-rectal surgery.  In three of the cases it was found proved that the appellant carried out procedures that were beyond the limits of his clinical competence and technical expertise.  In two of the cases there were findings of clinical misjudgment and in three of the cases there were findings of failure to manage bleeding effectively.  

6. 	In respect of five patients the heads of charge related to breast reconstruction surgery.  In each case there was a finding that the procedures were beyond the limits of the appellant’s clinical competence and technical expertise, reflecting the absence of training in breast reconstruction surgery.  In one case it was found that the decision to attempt partial breast reconstruction was inappropriate.  In another, decisions to insert prostheses were inappropriate.  In two of the cases the appellant had failed to ensure that suitable prostheses were available.  There were findings that in two patients prostheses were placed too high on the chest wall resulting in poor cosmetic effects and discomfort for the patients.  Following discussion in 1997 with the Clinical Director of Surgery, the appellant decided not to carry out any more breast reconstruction surgery.

7. 	There was found proved in respect of each of the ten patients that the appellant failed to pay sufficient regard to the safety and best interests of the patient or performed procedures without paying sufficient regard to the patient’s safety and best interests.

8. 	After having made factual findings on the heads of charge, the PCC heard counsel on whether the facts amounted to serious professional misconduct and on penalty.  The Committee received from counsel what the Chair described as “a formidable bundle of testimonials” from colleagues, fellow doctors and patients in support of the appellant and attesting to the quality of his general surgical and other professional work.

9. 	The Committee spent almost two days considering, in camera, its determination.  When announcing the decision directing erasure of the appellant from the register for serious professional misconduct the Chair said:
“We have debated at length whether it will be possible to allow you to continue in practice by making you subject to certain defined conditions.  However the Committee has been forced to reject such a possibility because we found it impossible to formulate conditions which would deal effectively with the deficiencies in your conduct, provide adequate protection for patients and reflect the gravity of the case.”

The Appeal
10. 	The appeal to their Lordships’ Board against the order directing erasure was presented initially on the ground that this sanction was unnecessary and disproportionate when there were available other, more constructive courses which would not have involved risk to the public.  It was contended that for the appellant, a highly trained young doctor of undoubted commitment with a background in general surgery, research and teaching of satisfactory quality, it should have been possible to formulate conditions applicable to his practice of medicine in the future while protecting the public.  However, shortly before the appeal came on for hearing, one member of the Committee, through solicitors, advised the solicitors for the appellant of concern that there may have been a procedural irregularity in the proceedings of the Committee.  The correspondence raised a question whether there may have been legal advice given to the Committee by the Legal Assessor in the course of the Committee’s in camera deliberations that should have been disclosed and counsel afforded the opportunity to comment on the advice.  

11. 	The matter came before their Lordships on 24 July 2002 when counsel for the appellant requested an adjournment of the hearing of the appeal and directions enabling investigation of the possible procedural irregularity.  Accordingly, their Lordships directed that sworn statements be obtained from the two members of the Committee who were said to have expressed concern, from the Chair of the Committee and from the Legal Assessor.  To preserve the confidentiality of the in camera deliberations of the Committee, their Lordships directed that the statements should be submitted to the Registrar and not made known to the parties to the appeal without the leave of the Privy Council.

12. 	When the matter came before their Lordships for substantive hearing of the appeal, the four sworn statements were available and Mr Miller for the appellant advanced as a preliminary ground that the decision of the Committee ordering erasure from the register should be set aside for material procedural irregularity.

The Evidence
13. 	The PCC comprised six members, three, including the Chair, were medical members and three were lay members.  The Legal Assessor, acting under the General Medical Council (Legal Assessor) Rules 1980, was an experienced member of the Bar.

14. 	The sworn statements placed before their Lordships were from the three medical members, including the Chair, and from the Legal Assessor.  The statements reflect differences in their recollections.  The first medical member, who had originally raised the question of possible procedural irregularity, said that when the Committee met on the morning of 3 November 2001 to consider what orders or directions should be made in light of the factual findings previously reached, the Chair suggested a brief discussion before formally going in camera.  It was during the course of this discussion that the Legal Assessor expressed the view that an erasure order ought to be made in respect of the appellant.  The witness said further that during the subsequent in camera discussion one member asked the Legal Assessor about the possibility of imposing a condition that the appellant could not carry out surgery and the Legal Assessor informed the Committee that he considered such a condition was tantamount to erasure from the register and that therefore such a step was unwise as it would be open to an appeal before the Privy Council.

15. 	The statement of the next medical member was that during a brief discussion amongst the Committee which was not in camera the Legal Assessor expressed the strong view that, in effect, the appellant ought to be erased.  During the in camera discussion the Legal Assessor was asked to comment on a possibility the member had raised of imposing a condition on the appellant’s continuing practice to the effect that he could not undertake surgery.  The Legal Assessor indicated that he did not think that was a realistic option as it would be tantamount to erasure and as such the appellant’s solicitors may be dissatisfied with such an order.

16. 	The statement of the Chair of the PCC refers to a discussion before the members went in camera.   The Chair was not present during the first part of the discussion.  She said that the part she heard was after a request from the Legal Assessor to talk to members before they went in camera.  She emphasised to the Committee that any comments then made “were outside the formal remit of the Panel”.  Her recollection was of the Legal Assessor commenting on the need for careful consideration and that there was no response or discussion amongst the members with regard to what was said.  The statement recounts that in the course of the deliberations one member expressed the view that he would like the appellant to retain his registration and not practise medicine.  Later in the discussion the same member asked the Legal Assessor if the doctor would appeal if they were to say that he could not practise surgery.  The Legal Assessor answered that if he were his lawyer he would advise appeal.  This was described as general speculation in the context of an ongoing debate which the Chair did not consider to be legal advice to the Committee.
17. 	The sworn statement of the Legal Assessor refers to the discussion prior to the in camera deliberations.  He recalled observing that the case was obviously very serious and required careful consideration.  He did not recall saying the appellant should be erased.  He denies as inconceivable that he advised the Committee that they could not impose a condition that the appellant should not practise surgery.  He said that in the course of the discussion one member suggested the Committee could perhaps impose a condition that the appellant not practise but remain on the register to which he had said that it could not be done and that such a condition would be tantamount to erasure.

18. 	Their Lordships were not in a position to resolve the difference in the recollections expressed in these sworn statements.  Ms Poulet for the respondent accepted that the appellant should face no burden of establishing exactly what occurred and that it was appropriate for their Lordships to proceed on the basis of the version most favourable to the appellant.  If that shows any material procedural irregularity the appellant cannot be regarded as having received a fair hearing and the determination could not stand.

Procedural Irregularities
19. 	Where, as here, there arises a question of non-compliance with The General Medical Council (Legal Assessors) Rules, some limited intrusion into the confidentiality of in camera deliberations of the PCC may be necessary.  That is to be approached with care to ensure that full and open discussion in the course of those deliberations is not constrained.  Rules 3 and 4 read:
“3.	It shall be the duty of the legal assessor to inform the Committee forthwith of any irregularity in the conduct of proceedings before that Committee which may come to his knowledge and advise them of his own motion where it appears to him that but for such advice, there is a possibility of a mistake of law being made.

4.		In proceedings before the Professional Conduct Committee or the Health Committee, the advice of the legal assessor shall be tendered to the Committee in the presence of every party, or person representing a party, attending the proceedings before that Committee.  Provided that in any case where the advice is tendered after the Committee have begun to deliberate as to their findings and the Committee consider that it would be prejudicial to the discharge of their duties for the advice to be tendered in the presence of the parties or their representatives.  It may be tendered in their absence but the legal assessor shall, as soon as possible, personally inform them of the question which has been put to him by the Committee and of his advice, and the information so given by him shall be recorded and a copy of the record shall be given to every such party or representative.”

20. 	In the present case Mr Miller submitted that there were two procedural irregularities.  The first was the expression of view by the Legal Assessor, before the Committee’s in camera deliberation, that erasure was the appropriate sanction.  The second was the advice to the Committee that a condition that the appellant not practise surgery was tantamount to erasure and would be unwise because it would provoke an appeal.  In relation to the first he submitted that it was wholly inappropriate for the Legal Assessor to proffer an opinion on the proper sanction and that it cannot be said what impact this may have had on members of the Committee, particularly the lay members.

21. 	On the second irregularity Counsel’s submissions were that it constituted legal advice;  that it was erroneous in that the condition postulated was not tantamount to erasure;  that it was an improper reason for rejecting a condition that there might be an appeal, and that the advice should have been disclosed so that counsel would have had the opportunity to make submissions. Counsel made reference to aspects of the appellant’s background and work experience that could have been relied upon to show that such a condition would not be wholly inappropriate.

22. 	In response Ms Poulet submitted that the statements attributed to the Legal Assessor did not constitute legal advice and would not have been taken by the members of the Committee as legal advice.  If they had regarded the comments as legal advice such an experienced Committee would have taken steps to ensure disclosure to the parties  It was submitted also that it should not be assumed that, in the lengthy deliberation, the Committee did not fully consider the possibility of conditions involving the appellant remaining on the register but carrying out no surgery if that was seen by them as a realistic proposition.  Counsel emphasised that the appeal was by way of rehearing and invited their Lordships, in the event that they determined that there had been irregularity, to decide the matter of sanctions for themselves in the light of all that has now been disclosed.  It was submitted that the conduct of the appellant reflected on his ability to practise medicine, not just surgery, and the order for erasure should stand.

23. 	It was unfortunate in this case that there was not agreement on just what occurred.  To avoid such a situation in the future consideration should be given to the adoption of a practice of making a record of interventions and responses by Legal Assessors in the course of in camera deliberations of the PCC and Health Committees.  As the matter was presented, in fairness to the appellant, their Lordships approached the matter on the basis that the accounts more favourable to the appellant may be accurate.  They were assessed against the requirement in the proviso to Rule 4 and its purpose as noted in the judgment of their Lordships in Nwabueze v General Medical Council [2000] 1 WLR 1760, 1775:
“That having been said, their Lordships consider that the principle which lies behind the requirement that the parties should be informed of the assessor’s advice to the committee is that of fairness, and that fairness requires that the parties should be afforded an opportunity to comment on that advice and that the committee should have an opportunity to consider their comments before announcing their determination.”

24. 	Their Lordships were not persuaded that the comment said to have been made by the Legal Assessor prior to the in camera deliberations to the effect that the appellant should be erased from the register, if made, constituted legal advice.  Nor did they consider it was likely materially to have influenced the members of the Committee.  Under rule 31 of The General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988 the Committee must determine that the imposition of conditions is not sufficient before erasure can be directed.  It was clear from the material before their Lordships that the Committee deliberated at length on possible conditions which might be imposed on the appellant.  The Committee was not deflected from the proper approach by the opinion said to have been offered at an early stage by the Legal Assessor.  There was not a material procedural irregularity on this ground.  Nevertheless their Lordships consider that such an expression of opinion could be no part of the role of a Legal Assessor under the Rules and would be unwise and an improper intrusion into the functions of the PCC whether or not they were in camera.
25. 	It is on the second ground advanced by Mr Miller that their Lordships considered there had been a failure to comply with the procedure laid down in the proviso to rule 4 and therefore a procedural irregularity.  The factual assumption is that, in the course of the in camera deliberations, one member of the Committee asked the Legal Assessor to comment on the possibility of a condition that the appellant could not carry out surgery and received a reply to the effect that such a course would be tantamount to erasure, would be unwise and would lead to an appeal.  Their Lordships considered that while these comments may be capable of being construed as merely an opinion on the impact of the suggested condition on the appellant, they can also suggest that the imposition of that condition was not open to the Committee as a matter of law.  It is what may have been conveyed to the members of the Committee, particularly the lay members, that calls for assessment.  It could not be assumed that, because the Committee did not follow the procedure required, the comments were not taken to be legal advice.  Reasoning in that way fails to engage the question of procedural irregularity.  Their Lordships were not prepared to assume the comments would not have been taken as legal advice.  Further they agree with Mr Miller that such advice was erroneous in that the imposition of such a condition would not be tantamount to erasure either legally or factually in the case of the appellant.  There was no argument to the contrary.  They agree also that it was not sufficient reason for rejecting conditions that the appellant might appeal.

26. 	Had the advice been disclosed, Mr Miller would have had the opportunity to comment on the advice and to advance argument that the imposition of a condition that the appellant not carry out surgery was open to the Committee and that, in the circumstances of the appellant, such a condition would not necessarily bring his medical career to an end.  Since the matter of sanctions has been remitted, their Lordships make no further comment on these matters.

27. 	Their Lordships were satisfied that the irregularity was material in that the advice might well have influenced members of the Committee to put aside the possibility of a condition, or conditions, involving the appellant undertaking no surgery.  Their Lordships did not accept it could be safely inferred, as argued by Ms Poulet, that the Committee would have considered the suggested condition on its merits notwithstanding the comments of the legal adviser.
28. 	For these reasons their Lordships were satisfied the direction for erasure could not stand.

29. 	The matter of sanctions must be reconsidered.  Their Lordships consider that this is best undertaken by the Committee, differently constituted and advised by a different Legal Assessor. They will be better placed than their Lordships to consider any conditions contended for and to formulate workable conditions if such is a course is considered appropriate.