Bijl v General Medical Council
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 02 October 2001 |
| Neutral Citation | [2001] UKPC 42 |
| Docket Number | Appeal No. 78 of 2000 |
| Court | Privy Council |
| Date | 02 October 2001 |
[2001] UKPC 42
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Mackay of Clashfern
Lord Clyde
This is an appeal from a decision on 4 November 2000 of the Professional Conduct Committee of the General Medical Council to direct that the name of the appellant Willem Bijl be erased from the register. The direction followed a finding on the previous day, from which there is no appeal, that he had been guilty of serious professional misconduct.
Although the Board has full jurisdiction under section 40 of the Medical Act 1983 to entertain an appeal by way of rehearing from such a direction, it has traditionally and rightly exercised that jurisdiction with circumspection. As the Board said in Evans v General Medical Council 1984 at p. 3: (unreported) Appeal No 40 of 1984 at p. 3:
"… a disciplinary committee are the best possible people for weighing the seriousness of professional misconduct and … the Board will be very slow to interfere with the exercise of discretion of such a committee … The Committee are familiar with the whole gradation of seriousness of the cases of various types which come before them and are peculiarly well qualified to say at what point on that gradation erasure becomes the appropriate sentence. This Board does not have that advantage nor can it have the same capacity for judging what measures are from time to time required for the purpose of maintaining professional standards."
The Human Rights Act 1998 has not affected the validity of these remarks which are not based upon any principle restrictive of the appellate powers of the Board but on obvious common sense. European jurisprudence on human rights does not suggest that they are incompatible with the right to a hearing by an independent and impartial tribunal in accordance with Article 6(1) of the Convention: see Wickramsinghe v United Kingdom (Application No 31503/96 9 December 1997) (unreported) and Stefan v United Kingdom (App. No 29419/95 9 December 1997) EHRR Commission Supplement CD 130.
At the time of the incident which gave rise to the charges, Mr Bijl was a consultant urologist at Basildon Hospital. On 2 July 1996 he carried out a "keyhole" operation upon Mrs Mary Love to break down and remove a large staghorn stone which was lodged in her left kidney. Mrs Love was 61 and suffered from a variety of ailments including urinary tract infections, diabetes, chronic ischaemic heart disease, left ventricular failure, hypertension and obesity. She had had a hysterectomy and a triple by-pass. The consultant anaesthetist in attendance, Dr Simon Thomson, assessed the level of risk she posed in anaesthetic terms on a scale from 1 (fit) to 5 (moribund) as 3 (severe chronic disease which is not immediately life-threatening).
The operation began at 2.00 pm when Mrs Love was given a general anaesthetic. Dr Chan, consultant radiologist in attendance, created a track though which Mr Bijl could have access to the kidney stone. He punctured the kidney with a needle down which he passed a guide wire which in turn enabled a sheath to be passed into the kidney. The purpose of the sheath is to control bleeding from the kidney tissue and to enable a nephroscope (a kidney telescope) to be passed into the kidney, so that Mr Bijl could see and attack the stone. These preliminary works took some time because the guide wire kinked. It was 4.00 pm before Dr Chan satisfied himself that Mr Bijl had a clear vision of the stone and left the theatre.
Breaking up the stone proved a slow and difficult process. Mr Bijl was looking through his telescope trying to see the stone while Nurse Tannock kept the operation area free of blood clots by continuous irrigation with saline fluid. He was using a lithotripsy (a probe which emits short bursts of energy) to break the stone into pieces which could be removed with forceps. His note described progress as tedious.
Despite the sheath, Mrs Love was bleeding internally during the operation. A lot of blood, together with irrigation fluid, was visibly draining through a tube into a large pouch at the operating table. At 5.15 pm Dr Thomson was concerned about the amount of blood loss and measured the haemoglobin level. It had fallen from 12.9 before the operation to 7.1. There was a general discussion about the significance of this measurement, which appeared to indicate a considerable loss of blood. Dr Thomson gave the patient a transfusion of two units. At 5.45 pm there was an episode of...
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