Subramanian vGeneral Medical Council (GMC) [2002] UKPC 64 (5 December 2002)

	ADVANCE COPY

	Privy Council Appeal No. 16 of 2002

Dr. Ramachandran Subramanian	Appellant
	v.
The General Medical Council	Respondent

	FROM

	THE PROFESSIONAL CONDUCT COMMITTEE
OF THE GENERAL MEDICAL COUNCIL
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 5th December 2002
	------------------

	Present at the hearing:-
			Lord Hobhouse of Woodborough
Sir Denis Henry
Sir Philip Otton
		  	[Delivered by Sir Denis Henry]
	------------------

1. 	The appellant, Dr Subramanian, appeals under section 40 of the Medical Act, 1983 (as amended) from the determination of the Professional Conduct Committee (“the Committee”) of the General Medical Council (“the Council”) that the appellant had been guilty of serious professional misconduct and by the direction of the Council of 1st February 2002, that the appellant’s name be erased from the Medical Register pursuant to section 36(1) of the Medical Act 1983 (as amended).  The Committee further directed that, for the protection of the public, his registration should be suspended with immediate effect pursuant to section 38(1) of that Act.

Background
2. 	The appellant qualified MB BS from Madras University in 1974.  He came to practice in the United Kingdom in 1979, initially taking hospital jobs and specialising in anaesthetics.  He then trained and was certified in general practice, and has combined that with hospital work ever since.  He is now 60.

3. 	This case concerns his treatment of a 5 year old child, Margarita Darker, the daughter of the complainant, Mrs Fanoulla Darker.  She was taken ill on 28th December 1999, a Bank Holiday.  On that afternoon her mother consulted the appellant, who was working on a sessional basis for Healthcall Ltd, who provided at their premises out of hours cover for local general practitioners, in this case Dr Wilkinson, whose patient Mrs Darker was.  Mrs Darker described Margarita’s symptoms as fever, vomiting and abdominal pain, and drew the doctor’s attention to a rash on her collar bone which she later described as purple.  Mrs Darker feared that the rash indicated meningitis.  The appellant diagnosed viral fever, not requiring hospital admission.  He considered Mrs Darker’s fears to be “parental anxiety”.  Although the appellant agreed that Margarita be immediately taken to hospital for a second opinion, he refused to call (or authorise) an ambulance, and told Mrs Darker to use her own car which she duly did.  She had to take the girl without being accompanied by a qualified person, which was not appropriate.  On arrival, her daughter was immediately admitted, a diagnosis of meningococcal septicaemia was made and despite correct emergency treatment, she died some eight hours later in the early hours of the morning of the 29th.  However, it was accepted that it was unlikely that the appellant’s conduct would have affected the outcome.  Mrs Darker then made a formal complaint to Salford Health Authority (received by them on 7th February) contending that the appellant had failed to report promptly on that complaint, and had failed to co-operate in its investigation, not reporting to the Medical Director of Healthcall Services although requested to do so until on or about 8th March 2000 and not co-operating until the preparation for his report, between the 5th and 8th March.

4. 	On 5 days (28th, 29th, 30th, 31st January and 1st February 2002) the Committee inquired into the charge set out in paragraph 5 below against the appellant.  The  appellant was present and represented by Miss Fiona Neale of counsel, instructed by Messrs Radcliffes Le Brasseur, solicitors.  The Council was represented by Miss Jane Tracy Forster of counsel, instructed by Messrs Alexander Harris, solicitors.  Mr. Peter Kyte QC acted as legal Assessor to the Committee.  Both counsel appeared before their Lordships.
5. 	The charge as brought, annotated to indicate admissions, concessions, and matters found proved was: 
“That, being registered under the Medical Act,

1.	On 28 December 1999
a.	You were employed by Healthcall Services Limited as a locum general practitioner.
Admitted and found proved.
b.	You were working at the Healthcall primary care services in Pendleton, Salford.
Admitted and found proved.

2.	a.	On that date Margarita Darker was brought into the centre by her mother, Mrs. Fanoulla Darker.
Admitted and found proved.
b.	You saw Margarita Darker in a consulting room with her mother.
Admitted and found proved.
c.	The consultation began at about 14.50 hours.
Found proved.
d.	Mrs Darker described Margarita’s symptoms as
(i)	Fever
Admitted and found proved
(ii)	Vomiting
Admitted and found proved
(iii)	abdominal pain
Admitted and found proved
(iv)	a purple rash on her collarbone
Found proved as ‘a rash on her collarbone’
(v)	[withdrawn]

3.	In the course of the consultation you, 
a.	took Margarita’s temperature
Admitted and found proved
b.	examined her ears and eyes
Admitted and found proved
c.	Listened to her heartbeat and respiration
Admitted and found proved.

But you did not,
d.	examine the purple rash on her collarbone
Found proved
e.	conduct any further examination
(i)	by examining her body for signs of a rash elsewhere, or
Found proved
(ii)	[withdrawn]
(iii)	[withdrawn]
(iv)	[withdrawn]

4.	a.	You did not therefore conduct an adequate examination of this patient.
Found proved
b.	You thereby did not place yourself in an adequate position to assess her condition and treatment needs.
Found proved

5.	At the conclusion of the consultation
		a.	You diagnosed a viral fever.
Admitted and found proved
b.	You considered Mrs. Darker’s fear of meningitis to be ‘parental anxiety’
Admitted and found proved
c.	You agreed to Mrs. Darker’s request that Margarita be taken to hospital immediately
Admitted and found proved
d.	You refused Mrs. Darker’s request for an ambulance and told her to take Margarita to the hospital in her own car.
Found proved
e.	You wrote a referral note to the hospital suggesting a diagnosis of viral fever.
Admitted and found proved

and therefore did not take suitable and prompt action to refer her to specialist medical services when her condition so required.
Found proved
6.	Margarita Darker was admitted to the Royal Manchester Children’s Hospital at Pendlebury at about 15.25 on 28 December 1999.  A diagnosis of meningococcal septicaemia was subsequently made.  Despite treatment she died at 00.50 on 29 December 1999.
Admitted and found proved

7.	On 29 December you were requested by Dr Finegan, the Medical Director of Healthcall Services, to prepare a report on your consultation with Margarita Darker.	    
Found proved

8.	You failed to provide any report, oral or written, to Dr Finegan during January 2000.
Admitted and found proved.

9.	On 7 February 2000, Mrs Darker complained about the consultation Margarita had had with you on 28 December 1999, in a letter addressed to Salford Health Authority, dated 4 February 2000 and copied to Dr Wilkinson.
Admitted and found proved

10.	a.	Dr Wilkinson implemented the complaints procedure by writing to you on 11 February 2000 (letter sent on 14 February 2000).
Found proved as ‘Dr Wilkinson implemented the complaints procedure by writing to you on 11 February2000’
(i)	to notify you of Mrs Darker’s complaint
Found proved
(ii)	to see your written report within 7 days, dealing specifically with the existence of a purple rash and with your decision to allow the child to travel by car to the hospital.
Found proved

b.	Dr Wilkinson wrote to you again on 18 February 2000, reminding you of your professional responsibility to respond promptly to complaints.
Found proved
c.	You did not provide any report, oral or written, to Dr Finegan or Dr Wilkinson during February 2000.
Admitted and found proved
d.	On 1 March 2000, Dr. Wilkinson wrote to you requesting an immediate response.
Admitted and found proved
e.	Dr. Finegan wrote to you on 1 March 2000 urging you to provide a written report.
Admitted and found proved
f.	On [a date between 3 and] 8 March Dr. Finegan received an undated report on the consultation from you by post.
Admitted and found proved.
g.	You failed, in the circumstances, to provide a report to Dr. Wilkinson as requested promptly.
Found proved
h.	You failed, in the circumstances, to co-operate with the investigation of Mrs. Darker’s complaint.
Found proved.

and in relation to the facts alleged you have been guilty of serious professional misconduct.”

6. 	At the conclusion of its deliberations, the Chairman of the Committee announced the determination and direction of the Committee, giving their reasons, which were as follows:-
“The Committee cannot but be deeply concerned at the evidence with which they have been presented and at the outset would like to express condolences to the family of Margarita Darker.  You have admitted that at the material time you were employed as a locum general practitioner by Healthcall Services Limited in the Salford area.  You have admitted that on 28 December 1999 you were consulted by Mrs. Fanoulla Darker, who brought her five year old daughter, Margarita, to see you.  Mrs. Darker described Margarita’s symptoms as fever, vomiting and abdominal pain and drew your attention to a rash on her collar bone.  You have admitted that during the course of the consultation you took Margarita’s temperature, examined her ears and eyes and listened to her heart beat.  However, it is clear that you failed to examine the purple rash and failed to examine her body for signs of rash elsewhere.  You failed to discharge your duty to conduct an adequate examination of this patient, and did not place yourself in an adequate position to assess her condition and treatment needs.  You diagnosed viral fever and although you agreed to Mrs. Darker’s request that Margarita be taken to hospital immediately for a second opinion, you refused to call an ambulance and told Mrs. Darker to take Margarita to hospital in her own car.  The expert witness called on behalf of the complainant, Dr. Ineson, confirmed to the Committee that an appropriate course of action would have been transportation to the hospital by ambulance and, at the very least, the patient should have been suitably accompanied.

Margarita was admitted to the Royal Manchester Children’s Hospital at Pendlebury, where a diagnosis of Meningococcal Septicaemia was made and medication administered. Unfortunately, she subsequently died, although the Committee note the complainant’s acknowledgement that it is unlikely your conduct would not have affected the tragic outcome.

The Council’s guidance, ‘Good Medical Practice’, issued in 1998, makes clear that patients are entitled to a good standard of practice and care from their doctors.  You had an obligation to carry out an adequate assessment of Margarita’s condition based on the clinical signs with which you were presented.  You were also under an obligation to take suitable and prompt action when necessary, and to keep clear and accurate patient records which report the relevant clinical findings.  There were a number of inconsistencies and inaccuracies in your record of your consultation with Margarita Darker, and it is clear you were not exercising the standard of care to which your patient was entitled.  You failed to discharge your duty to your patient in every sense.

Following Margarita’s death, Mrs. Darker made a complaint to the Salford Health Authority about the treatment she received.  This was passed to her general practitioner, Dr. Wilkinson, who wrote to you on 11 February 2000 to notify you of the complaint and to seek your immediate written report dealing with the existence of the purple rash and your decision to allow the child to travel by car to hospital. Although the Committee accept that this correspondence was to Healthcall’s address rather than directly to you, they are sure that in the light of all the evidence that has been adduced on this issue you failed to co-operate with the investigation of Mrs. Darker’s complaint.  It is accepted, however, that on receipt of subsequent reminders you compiled a report on the treatment and subsequently attended a meeting at Dr. Wilkinson’s surgery.

Good Medical Practice states that patients who complain about the care or treatment they have received have a right to expect a prompt and appropriate response.  Again, your conduct in relation to the complaint represented a departure from the standard expected from members of the medical profession.  Your misdiagnosis of Margarita’s condition and subsequent action was a consequence of your failure to conduct a proper examination of your patient.  You compounded your failings by not responding promptly to the complaint raised about your treatment.

Taking all the circumstances into account, the Committee have found you guilty of serious professional misconduct. Having reached this finding, the Committee gave a great deal of consideration as to the action they should take in relation to your registration.  In reaching their decision they took full account of the testimonials submitted on your behalf and the Council’s guidance on sanctions.  Given the seriousness of the consequences of your actions it was clear a reprimand would not be sufficient.  They considered the imposition of conditions, but concluded that they could not be sure that the public could be adequately protected from any potential danger arising from what they consider to be a gross departure from the standard of care to be expected of doctors.  They similarly considered suspending your registration, but concluded that a period of suspension would not be an appropriate sanction, given your lack of insight and the real possibility that your lapses in professional judgment could recur.

They therefore concluded that in the interests of protecting members of the public, and maintaining confidence in the medical profession, the only appropriate sanction would be to direct that your name be erased from the register.  The effect of the foregoing is that unless you exercise your right of appeal, your name will be erased from the register 28 days from today.  The order imposed by the Interim Orders Committee on 21 November 2000 is hereby revoked.

Having concluded that your name should be erased from the Register, the Committee will now go on to determine whether they consider it necessary for the protection of members of the public, or in your own interests, to impose an order for the immediate suspension of your registration.”

The Grounds of Appeal
7. 	From these findings the appellant appeals on four issues. First, should the proceedings have been stayed on the basis that there was “apparent bias” on the part of the Committee?  Second, was there a fulfilment of the prosecutor’s obligations (i) to investigate the matter properly and (ii) to disclose documentation; and to the extent that such obligations were not fulfilled, what were the effects of this?  Three, should the “second limb” of the charge (failure to co-operate with the complaints process) have been considered as a separate charge?  Four, was the penalty disproportionate?

Ground One – Apparent Bias
8. 	Their Lordships first considered the question of apparent bias. The factual background was that this was not the first time that the appellant had been on disciplinary charges before the Committee. The Council did not propose to put that information before the Committee.  The events in question had happened 20 years before, and the hearing had been in 1987.  Consequently the Committee members knew nothing about those matters.  However, on the morning of the second day of the hearing, there appeared in the Daily Mail a conventional court report of the first day’s hearing.  No complaint is or can be made of that, but it concluded:
“Sri Lanka-born Dr Subramanian denied failing to examine Margarita adequately.  In 1987 he appeared before the GMC after five women felt the pain of caesarean births at Billinge Hospital near Wigan, where he was an anaesthetist.

He was found guilty of serious professional misconduct, but not struck off.

The hearing continues.”

That passage disclosed information which the General Medical Council had wished to keep from the Committee until they had made their determination in this case.

9. 	In the event, one member of the Committee (Mr Semmons, a lay member) certainly read that article, and another member had glanced at it without having read it.  Mr Semmons on arrival at the hearing that morning found himself in the lift with 3 or 4 members of the seven-man Committee, including the Chairman.  He told them that the doctor had been “up before” the Committee before. The Chairman informed the Legal Assessor of these bare facts, and Mr Kyte investigated what had happened and considered what to do – whether to halt the proceedings or to carry on.  No objection was taken to that course.

10. 	That Legal Assessor then held a private session of the hearing. At that session Ms Neale for the appellant indicated that her client was prepared for the hearing to proceed on the basis that the Committee were to be told some basic facts of the earlier hearing, namely that it had been in 1987, it related to matters which had occurred some 7 years earlier than that, it related to anaesthetics, it came before the Committee on the basis of agreed facts, and the outcome was that Dr Subramanian was admonished.  But she wished the reservation to be added:
“For the avoidance of doubt, counsel for the defendant does not regard this clarification as completely remedying the position.”

11. 	The parties proceeded on the basis that the hearing would proceed while that agreement was reduced to writing, and then put before the Committee in open session.  Before this happened there was a new factor discovered by the legal advisors to the General Medical Council on the 4th day of the hearing, Thursday.  This new information appears to their Lordships to be the trigger for the appellant’s belated application to stay these proceedings as an abuse of process, an application which they made on the last day of the hearing, after all the evidence had been called.  On that day Miss Neale agreed that Ms Tracy-Forster should put an agreed statement of the new information before the Committee:
“As a result of enquiries made, it is right that you know that the press coverage which is referred to in the [original] joint statement came in two forms.  The first form was an article in a regional newspaper in the north of the country last week, well before this hearing started.  I understand it is highly unlikely that any member of the Committee saw a copy of that publication.  The second form is that form which came to our attention on Tuesday, whereby a national newspaper published a story about the opening day of this hearing, and in that story referred to Dr Subramanian’s previous appearance before the GMC.  Those instructing me have been working hard over the last couple of days trying to get to the bottom of how such a thing should happen, which on any event is extremely regrettable.

Our initial suspicion was that it was due to irresponsible reporting, because, as the Committee is aware, the minutes of all previous Committees are in the public domain and therefore the information concerning the 1987 appearance is freely available to the press, through the website and other legitimate sources of information as to GMC documents. The Committee are also aware that the GMC has no power in law to prohibit publication of such material because there is authority to the effect that this Committee is not regarded as a ‘court’ within the meaning of the Contempt of Court provisions of the law.

Having said that by way of preamble, nevertheless it is right that the Committee should know this.  In respect of the Daily Mail we have drawn a complete blank on enquiries.  Those enquiries have been channelled both through my instructing solicitors, and with the assistance of your secretary, directly through the GMC Press Office.  We are obtaining no response to either telephone calls or emails.  It is regrettable, but it is perhaps not entirely surprising.  As to how they came by the information and how they decided to publish it, I cannot help the Committee at all.

In respect of the early publication last week I can assist the Committee, although the prosecution’s view is that if no member of the Committee saw this publication, this is of limited relevance.  But in the interest of you knowing exactly what happened, it is right I should tell you this.  It appears, regrettably, that the regional newspaper in question had obtained evidence of the 1987 hearing from their own library.  Someone working for the newspaper itself, having obtained the advance notification of this hearing through an agency,  telephoned the GMC Press Office to ask what the position was, so far as reporting the previous appearance.

The lady he spoke to, and he gave us a Christian name which has been confirmed as being a name belonging to someone in the GMC Press Office, said to him that she did not know, but would call him back.  Then in a subsequent conversation on the same day, when she called him back, she unfortunately told him that it was safe to refer to the previous conviction, or the previous appearance, I should say.  Thereafter she faxed him the memorandum of the minutes of that GMC Committee hearing.

That is the full extent of the information that we have been able to elicit as to how the matter came to the attention of the newspaper last week.  I am sorry I cannot assist at all in the respect of the Daily Mail of this week.  Obviously those matters, as soon as we ascertained them yesterday morning, were communicated directly to Dr Subramanians’s legal team.”

12. 	By way of comment on the second and fifth paragraphs of that transcript, it is right to say that the Council has presently no legal power to prohibit publication of such material as it is in the public domain, and as bodies such as the GMC have been held not to be courts: see General Medical Council v British Broadcasting Corporation [1983] 3 All ER 426.

13. 	Ms Neale for the appellant sought to stay these proceedings because the Committee, individually and collectively, were tainted by apparent bias.  There was no dispute as to the law relating to apparent bias.  The rule is set out in Taylor v Lawrence [2002] EWCA Civ 90: [2002] 2 All ER 353, 370:
“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased.  It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”

14. 	The test lays proper emphasis on the objective observer being both fair-minded and well informed.  To the basic requirement of fair-mindedness is added the need to be properly informed – that is to say that the fair minded observer should know of the protection against miscarriages of justice built into the GMC’s established system for the regulation of doctors’ professional conduct in England and Wales, where there is in position a long and well-established system with statutory backing, operated by those selected and elected to the task, and supported by a comprehensive appeal system – see Ghosh v General Medical Council [2001] Lloyds LR Med 933 (PC) at paras 33-34.  

15. 	Ms Neale in her skeleton argument goes considerably further than she had done when seeking a stay in court.  She says that as two newspapers have had the same item of news “there is a clear likelihood/possibility that the GMC Press Office is linked to both”. Therefore she says the GMC Press Office was “probably … encouraging an act which prejudiced the fair trial” of this doctor. She suggests that at best the giving of the information was “totally irresponsible”, and at worst, “malign”.  In the real world, the answer may more likely lie in ignorance or muddle.

16. 	Ms Neale relied upon the following events.  First the reporter, knowing from his employers, the provincial newspaper with its retrieval system, that there had been an earlier hearing and that there was to be another hearing, enquired of someone in the General Medical Council Press Department whether it was “safe” to refer to the earlier appearance and/or conviction.  The employee who answered the telephone apparently did not know the answer to the question, and said that she would find out and ring back.  The reporter was right to enquire, and the servant of the General Medical Council was right not to answer if she did not know.  So she was right to ask someone who she believed to be better informed.  Their Lordships do not know precisely what question he was asked, but the answer given reflected the law as it stands today, as the General Medical Council v British Broadcasting Corporation (above) shows, to have answered the question “No, it is not safe” would not reflect the law.  It was “safe” to publish that information without permission because it was not a legal wrong. But it was most unfortunate that the caller was not told that the Council hoped that the previous determinations would not be disclosed to ensure that there was no conceivable threat to the integrity of the hearing.

17. 	None of this impinges at all on the question of any actual bias on the part of any Committee member, as Ms Neale makes clear. Only Mr Semmons had read the piece and had expressed himself to be “appalled” by the disclosure.  No one has suggested that he was not appalled.  He was not to know that the law did not enable the prosecution to prevent such disclosure.

18. 	In this situation, knowledge of the 1987 proceedings came before the Tribunal when it was the clear intention of the Council that they should not. Ms Tracy-Forster made it clear that the Council were “embarrassed” by this, but:
“I do not, on behalf of the prosecution, believe that that additional information increases the likelihood of bias to the fair minded observer.  I believe there is no likelihood of bias, regrettable though the publication was.”

The Legal Assessor echoed the same theme at the close of his directions to the Committee:
“Unusually in this case, the Committee have heard about a previous appearance by this practitioner before the General Medical Council, in relation to agreed facts that occurred over 20 years ago when he was performing a completely different role it seems, namely that of an anaesthetist.  These matters have nothing to do with the decisions that the Committee now has to make, and they should exercise no influence on them at all.”

That was a clear and emphatic direction to the Committee members.

19.	Next, there is nothing to suggest that the person who initiated the question or the journalist who proposed the answer to it had any bias against Dr Subramanian.  There seems to their Lordships no evidence that he or she was doing anything other than simply doing his or her job, and the same can be said of everyone connected with the affair.  The way that the Professional Conduct Committee of the General Medical Council and the General Medical Council itself operate together is explained in R v General Medical Council, Exp Nicolaides [2001] Lloyds LR Med 525 s24:
“the function of the PCC as a panel are separate from those of the GMC as a whole; investigation/presentation and adjudication functions are kept entirely separate and are performed by different people.”

20.	Ms Neale submits that because the General Medical Council Press Office was the source of the assurance that it was safe to publish the previous occasions of serious professional misconduct, so the rule in Nicolaides (above) would not apply.  But there is no reason to believe that the General Medical Council Press Office were not operating quite independently of and separately from the Committee.

21.	Their Lordships feel they can safely say that there was no danger here of any prejudice to the doctor: this was a well established quasi-professional tribunal which had been directed in plain terms to pay no attention to the previous conviction because it would give them no assistance, a direction reinforced by the fact that it dealt with events more than 20 years before.  The experience their Lordships have of the jury system is that juries are faithful to their oath and abide by the instructions they are given.  There are rare circumstances, (and this case is not one), where the judge feels that the direction he is considering giving (for example to ignore some exceptionally prejudicial piece of evidence which they knew) might involve the jury in such “mental gymnastics” before they could accept what loyalty to their oath required of them that the risk could not be taken, and the jury would have to be discharged. But here it is difficult to see how the appellant’s conduct of 20 years ago could affect the fundamental point of credibility the Committee here had to consider.   This is not a case of apparent bias.  There was no abuse of process calling for the stay of the disciplinary proceedings before the Committee.  The Committee are an independent and impartial tribunal, and there are no grounds for quashing the finding of serious professional misconduct on the basis that these proceedings should have been stopped or the determination set aside for abuse of process.  The onus is on the appellant to establish a prima facie case of apparent bias, and in their Lordships’ judgment he has failed to do so.

Ground Two - Investigation, Disclosure and Admissibility
22.	The second ground raises the issue whether the prosecutor (i) defaulted on the obligation to investigate the matter fairly, and (ii) defaulted on the obligation to disclose documentation and that this was compounded by (iii) the admission of the late-served evidence of Mrs Bleakley, and (iv) the failure of the Legal Assessor to give any or any adequate direction on these issues, and in consequence the hearing was unfair, and should have been stopped as an abuse of process.

23.	Their Lordships accept that the common law right to a fair trial puts on the prosecuting authority the duty of timely disclosure of relevant and material evidence.

24.	As appears from the chronology prepared by the appellant, what happened here is that, in relation to the four sources of potential documents, the Council originally produced what they believed to be the relevant documents, but not the whole file. However, when this was pointed out or emerged during the hearing, the matter was dealt with by the hard work and competence of counsel, who produced and agreed where necessary three of the four sources (Dr Wilkinson’s personal file, her practice’s complaints file, and their telephone messages books). These sources did not contain anything of real significance, and what there was in the way of new material was dealt with by formal admissions.  No applications to adjourn were sought or necessary.

25.	In relation to the fourth source, namely the Healthcall file, this had been “mislaid” (Dr Finegan) and consequently was never disclosed.  But there was nothing to show that anything there would have been determinative on any issue.  The best that could be said was that it might have clarified the provenance of C12, which might or might not have been a fax header sheet.

26.	While authorities show that lost evidence can make the trial unfair, such cases are likely to be exceptional given the overall standard of our courts.  Abuse of process cases are likely to be fact-sensitive, but unless evidence is lost by bad faith or some serious fault on the part of the police or prosecuting authority, stays for abuse of process will be rare.  This is not such a case.

27.	Next, complaint is made that no witness evidence relating to the rash was “sought” from the nurses and/or doctors.  There is nothing in the papers before the courts suggesting that there was any available positive evidence which was not called.  The word “sought” is not further explained.  There is no suggestion that any individual who it was known could usefully assist was not invited to do so.  Indeed, had such a potential witness been available, either the appellant could have called him himself, or put pressure on the respondent to call him under rule 21 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules 1988:
“Any party to any inquiry may at any time give to any other party notice to produce any document relevant to the inquiry alleged to be in possession of that party.”

28.	It is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case.  The suggestion is made that some default in preparation meant that the evidence of what happened at the crucial consultation when the appellant and Mrs Darker were alone cannot be fairly tried.  The critical evidence was what passed between Mrs Darker and Dr Subramanian when she (as he now admits) was complaining of the rash and where the rash was.  There was no evidence in the papers to which their Lordships were referred suggesting that there were any witnesses who should have been called, but were not called, or as to what such witnesses might say.  The direct primary evidence was between Mrs Darker and the appellant.  They were the only people present.  Mrs Darker’s account was supported in its detail by the expert witness (Dr Ineson).  The notes as analysed by Dr Ineson show from the moment of admission to the Acute Referrals Unit with the historic detail “purpuric petechial rash” – written at some time between 3.30 and 4.00 pm, because “an awful lot was going on”, and the likelihood was that the notes would have been written up later.  Counsel for the General Medical Council put the question to Dr Ineson:
“Q. 	… If the Committee conclude that Mrs Darker’s version of events is correct, principally, that Margarita was being carried because she could not walk, was drowsy, falling asleep and not responding and had a purple mark like a love bite on the clavicle, what do you say about that account?

A.		That sound like an almost perfect description of meningitis.  ‘A purple love bite’ would be a typical description of the rash.  As I understand it, the examination was otherwise fairly agreed, but the contentious point is whether the rash was looked at.  A doctor does have an absolute duty to look at a rash a parent brings to determine its nature.  You cannot reassure about the rash without looking.  I understand that is a matter of factual dispute which it is for the Committee to resolve, but I would say if the rash was not looked at and it was purpuric, then the correct action would have been to look at it, to administer penicillin and admit to hospital by ambulance.”

29.	The appellant’s real problem was that his changing account was not credible, as the Committee found.  And Dr Ineson’s testimony supported Mrs Darker.  There is no warrant for saying that the evidence of the doctor’s refusal to look at the rash could not be properly tested.

30.	In relation to the evidence of Mrs Bleakley, it was a late application, caused by the need to plug an evidential gap.  It was a matter that the defence could and did meet (indeed the witness obligingly agreed that when asked whether she was remembering or speculating, replied “I am just speculating”).  Nor is there any relevance in or grounds for the attack on the Legal Assessor’s advice to the Committee as though it was a judge’s summing up to a jury: their Lordships draw attention to paragraph number 4 from Lord Hailsham’s speed in Libman v General Medical Council [1972] AC 217 at 221:
“(4) The legal assessor who assists the committee at its hearing is not a judge, and his advice to the committee is not a summing up, and no analogy with a criminal appeal against a conviction before a judge and jury can properly be drawn. The legal assessor simply advises the committee in camera on points of law and reports his advice in open court after he has given it.  The committee under its president are masters both of law and of the facts and what might amount to misdirection in law by a judge to a jury at a criminal trial does not necessarily invalidate the committee’s decision. Where a criticism is made of the legal adviser’s account of his advice the question is whether it can fairly be thought to have been of sufficient significance to the result to invalidate the decision: see Fox v General Medical Council [1960] 1 WLR 1017 and per Lord Guest in Sivarajah v General Medical Council [1964] 1 WLR 112, 116-117.”

31.	Even if there were anything in the criticism of what the Legal Assessor said, it was not of sufficient significance to invalidate the decision.  Finally, their Lordships were told by Miss Tracy-Forster without contradiction that “any perceived shortcomings in investigation or disclosure were ultimately of no great moment in the trial of the issues, and did not prejudice the appellant’s case”.

Ground Three: The Second Limb dealing with the Complaints Process
32.	Dr Subramanian’s legal responsibilities for Mrs Darker and Margarita did not cease with Margarita’s death.  The General Medical Council publication, Good Medical Practice (1998) dealt with the position in a group of paragraphs entitled “16.  If things go wrong”.  The doctor’s duty is there set out as follows:
“Patients who complain about the care or treatment they have received have a right to expect a prompt and appropriate response.  As a doctor you have a professional responsibility to deal with complaints constructively and honestly.  You should co-operate with any complaints procedure which applies to your work.”

33.	One of the objects of the complaints process so far as the patient and her family are concerned, is, in serious cases such as this, for them to achieve the peace of mind that will best enable them to put their tragedy behind them.  Hence the need for a prompt and co-operative response.

34.	Two sub-issues arise under this head.  First, is it unfair to charge the facts to be found in the charge sheet at paragraphs 5 hereof on a single count of serious professional misconduct, or should each limb of the facts the subject of the charge be charged separately?  That issue is procedural and general.

35.	The second issue is more specific: should the appellant have succeeded in his submission at the close of the prosecution case under rule 23(e) that in respect of the second limb, no sufficient evidence has been adduced upon which to find the second limb proved, and/or the evidence adduced has been insufficient to justify a finding of serious professional misconduct in respect of the second limb?

36.	The first of these two issues can be shortly dealt with.  The charge sheet, as set out in its entirety in paragraph 5, is in usual form, with all salient facts making one charge.  The form of the charge sheet is taken from a precedent found in schedule 2 of the Committee’s Procedural Rules 1988.  There is authority (Gee v General Medical Council [1987] 1 WLR 564 at pp 575-576) where Lord Mackay of Clashfern said:
“In a case relating to conduct where two distinct types of misconduct are alleged, and where the determination that one type of misconduct was established could not reasonably aggravate the seriousness of the other misconduct, I would think it would be better and in the interests of clarity for two separate charges to be alleged.”

37.	Their Lordships’ view is that those reasons do not apply in this case where the second limb can and did aggravate the seriousness of the appellant’s misconduct (as will be seen), and where there was no need in the interests of clarity for there to be two separate charges.  Further, no application was made before or at the hearing for the two limbs of the case to be heard separately, or treated independently as separate limbs.  Thirdly, it has never been suggested that the General Medical Council cannot charge an entire course of conduct, which is what was happened here - Dr Subramanian retained his responsibility to Mrs Darker and Margarita until the complaints process was over.  That was one course of conduct, and not two.

38.	Further, the conclusion reached in paragraph 37 that not having objected to the form of the charge either before or at the hearing is fatal to the submission that the second limb should be treated separately is fatal to the submission of no case for the appellant to answer on his rule 23 submission.  

39.	The sequence of events is taken from the Committee’s Findings of Fact as relevant to this limb of the case, as set out in the charge sheet in paragraph 5 hereof where those allegations were admitted and/or found proved:
“7.  On 29th December you were requested by Dr Finegan, the Medical Director of Healthcall Services, to prepare a report on your consultation with Margarita Darker.  (Found proved)

8.  You failed to provide any report, oral or written, to Dr Finegan during January 2000.  (Admitted and found proved)

9.  On 7th February 2000, Mrs Darker complained about the consultation Margarita had had with you on 28 December 1999 in a letter addressed to the Salford Health Authority, dated 4th February 2000 and copied to Dr Wilkinson. (Admitted and found proved).

10.	a)	Dr Wilkinson implemented the complaints procedure by writing to you on 11 February 2000. (letter sent on 14 February 2000) (Found proved as Dr Wilkinson implemented the complaints procedure by writing to you on 11th February 2000).
(i)	to notify you of Mrs Darker’s complaint. (Found proved).
(ii)	to seek your written report with 7 days, dealing specifically with the existence of the purple rash and with your decision to allow the child to travel by car to the hospital.  (Found proved)

b)	Dr Wilkinson wrote to you again on 18th February 2000 reminding you of your professional responsibility to respond promptly to complaints.  (Found proved)

c)	You did not provide any report, oral or written, to Dr Finegan or Dr Wilkinson during February 2000.  (Admitted and found proved)

d)	On March 1st 2000 Dr Wilkinson wrote to you requesting an immediate response. (Admitted and found proved)

e)	Dr Finegan wrote to you on 1 March 2000 urging you to provide a written report. (Admitted and found proved)

f)	On [a date between 3rd March and] 8th March Dr Finegan received an undated report on the consultation from you by post.  (Admitted and found proved)

g)	You failed, in the circumstances, to provide a report to Dr Wilkinson as requested promptly.  (Found proved)

h)	You failed, in the circumstances, to co-operate with the investigation of Mrs Darker’s complaint. (Found proved)

And that in relation to the facts alleged you have been guilty of serious professional misconduct.”

That charge sheet makes perfectly clear that the obligation to comply with the complaints procedure starts on the 29th December, and that the appellant did nothing to comply with that procedure until the first week of March.

40.	The argument put forward by Mrs Neale was as follows.  The letters from Dr Wilkinson first notifying and then chasing Dr Subramanian were dated 11th and 18th February.  The first enclosed the “NHS complaints procedure”, and the second chased the appellant’s failure to make any written or oral response.  By what seems to have been legal incompetence, the practise failed (or so the appellant contends) to prove the sending by fax and/or the posting of either letter.  According to the appellant’s case, it was not until 4th March when “the letter with documentation arrived” ie the letter with the complaint and certain clinical notes relating to the complaint that the appellant became liable to do anything in relation to his duty under the complaints procedure.  And his duties, so the submission goes.  He sent his report back, written, on 5th or 6th March, so it would have arrived by 8th March at the latest.  He wrote it without the need for notes, their Lordships are told.

41.	Over the period from 29th December to 4th May what had the appellant done?  So far as performance of the complaints procedure is concerned, he had done nothing but lie low.  On his own account he can fairly be described as having gone to ground, and then remained incommunicado.  He was working for Healthcall in Salford over January and February , so he said.  If that  is so, it would be curious if anyone in the appellant’s position would be unable to find their mail and messages.  The evidence was (2/80) that there was a tray for the message to Dr Finegan, but not for each individual doctor who came in.  More often than not, it would be held in the control room to await their next session.  If no such session was booked, it would be posted on for them.  But the evidence as to the minutiae of the system vanishes into insignificance when it is remembered that Dr Subramanian knew that he had promised his report first in January and then in February.  He had only to ask to discover the fate of his mail, but he did not do so.  He was not living in his house in Sale, because he had moved to Southport, and had not told his employers.  He was not visiting the house in Sale more than “once in a blue moon”.  He had neither arranged for his letters to be collected nor to be forwarded.  Nor was he answering them.  He had not in January or February told his employers where he was living.  If he had to get in touch with them, he did it by mobile telephone.  He said he paid all his regular bills by direct debit.

42.	His attitude was revealed in cross-examination by Miss Tracy-Forster.  When questioned about the delay he said:
“Q.	But you do recall in that conversation with Dr. Finegan, after being told that Margarita had died, you do recall being told that you would need to write a report, he would like you to do that?

A.		Eventually, yes, to give a report because there was  child dying; he requested it.

Q.		Do you agree with him that it is good professional practice to make a report of such a thing while matters are fresh in your mind and you have access to the records?

A.		Yes, perhaps he has mentioned to me, since the child has died it is naturally to request a more detailed report, yes.

Q.		Why didn’t you do that?

A.		Because, basically, I thought that – I mean, there was no intention to – I mean, I could have done it there and then, if had asked me to sit at the desk.  Usually the practice is the doctor – Healthcall is a private organisation; they write a report first.  And I don’t know, it just slipped and, I am sorry, I did not write an immediate report, yes

… [Then after some less relevant questions:]

Q.		Did you go back to Healthcall in January?

A.		Yes, January, as well as February. 

Q.		And you did not receive a fax letter? 

A.		There was no talk about anything of the sort. 

Q.		You did not know of any inquiries being made about you and your name and your whereabouts and your address?

A.		There was no talk, no. 

Q.		Did you give the Darker family any further thought during January or February, Dr. Subramanian?

A.		Sorry? 

Q.		Did you give the Darker family any further thought during January and February? 

	A.		No.

Q.		Had you forgotten about the incident? 

A.		I didn't know basically what to do.  It is not as if I don't want to talk or I don’t want to explain.  It is not like that.  But I didn't know what to do.  I was going on with my work and I had a new house and all that.”

The appellant never suggested that he ever believed that he had been released from his duty to report promptly after December 29th.  He knew perfectly well he was in breach of his duties.

43.	Dr. Subramanian’s lack of insight as to the enormity of his clinical behaviour and judgment on consultation, as to the object and importance of the complaints procedure, and as to how he had wronged Mrs Darker is well illustrated by these passages.

44.	It is clear that after Margarita’s death Dr Subramanian put himself before his duty to his patient.  He would have known perfectly well that all involved were looking for him to write his report.  This was a situation where the facts of the second limb would aggravate the serious professional negligence of the first limb.

45.	The alleged breach of the complaints procedure relied on the inescapable fact that the appellant had done nothing to fulfil his duty under that procedure from 29th December until 4th or 5th March.  The defence put forward is as set out in paragraph 48 of the appellant’s skeleton argument:-
“The allegation that Dr. Subramanian failed to produce a report promptly … was dependent on showing (i) when this letter [of 11th February] was sent, (ii) when it reached Dr. Subramanian.”

Where, as here, there was an obligation of the doctor to report in February if not during January, it is no defence to say that he did not know that February had passed.  When dealing with the defence that the correspondence had been sent to Healthcall’s address (where the contention was that there was no efficient system for keeping the post for doctors engaged on a per session basis), the Committee made this significant finding in their determination:-
“Although the Committee accept that this correspondence was sent to Healthcall’s address rather than directly to you, they are sure that in the light of all the evidence that has been adduced on this issue you failed to co-operate with the investigation of Mrs Darker’s complaint.  It is accepted, however, that on receipt of subsequent reminders you compiled a report on the treatment, and subsequently attended a meeting at Dr Wilkinson’s surgery.”

They were plainly entitled to reach the conclusion in the first sentence.  The appellant’s actions and evidence from December 29th to his first co-operation on or about 4th March show him to have been in breach of his duties under the complaints process.  So far as the second sentence is concerned, those actions came too late after much of the damage had been done.

46.	The dispute as to when the appellant knew that a report was required from him is not one that can only be resolved (in whole or in part) by whether or when Dr Wilkinson’s letter of 11th February did or did not reach the appellant.  He knew that a report had been requested of him by Dr Finegan, his line manager, and that obligation had not gone away while he did nothing to fulfil his obligation under the complaints process for all of January and February.

47.	On all the facts of the case, inherent in Dr Subramanian’s behaviour subsequent to Margarita’s death is the knowledge that a report was expected from him requiring him within seven days to submit a written report dealing specifically with the purple rash, and his decision to allow the child to travel by car to hospital (see charge sheet at paragraph 5, paragraphs 10(a)(ii), and paragraphs 10(b), (c), (d), (e), (f), (g) and (h)).  The facts required to prove all of those charges are admitted or proved.

The Penalty of Erasure
48.	The references put forward on Dr Subramanian’s behalf suggest a competent doctor who had taken care to update his skills.

49.	However, the Committee saw the appellant, and had the opportunity to observe him over five days, including one day giving evidence.  The suggestion that the consequences of the doctor’s evidence was not serious was not accepted, and the Committee was acting entirely within the discretion trusted to them in concluding that there was here a real possibility that the doctor’s lapses in professional judgment could recur, and erasure was required for the protection of the public.  Moreover the deliberate breach of the complaints process certainly could serve as a gratuitous aggravation of the appellant’s conduct at consultation. He compounded his failings by not responding promptly.  Nor was there any indication of remorse.  The Committee approached their task properly and the directions they gave were well within their powers.

Conclusion
50.	For these reasons their Lordships will humbly advise Her Majesty that the appeal should be dismissed with costs.