Dr. Emmanuel Dibua Nwabueze v The General Medical Council

JurisdictionUK Non-devolved
JudgeLord Hope of Craighead
Judgment Date06 April 2000
Judgment citation (vLex)[2000] UKPC J0308-1
CourtPrivy Council
Docket NumberAppeal No. 21 of 1999
Date06 April 2000

[2000] UKPC J0308-1

Privy Council

Present at the hearing:-

Lord Hope of Craighead

Sir Patrick Russell

Sir Andrew Leggatt

Appeal No. 21 of 1999
Dr. Emmanuel Dibua Nwabueze
Appellant
and
The General Medical Council
Respondent
1

[Delivered by Lord Hope of Craighead]

2

This is an appeal against a decision of the Professional Conduct Committee of the General Medical Council judging that the appellant had been guilty of serious professional misconduct and directing that his name should be erased from the Medical Register. At the end of the hearing of the appeal their Lordships announced that they had agreed humbly to advise Her Majesty that head 4 of the charge and the direction that the appellant's name be erased from the Register should be quashed, that subject thereto the findings of the Professional Conduct Committee should be affirmed and that the matter should be remitted to the Professional Conduct Committee, differently constituted, to decide what, if any, directions to give under section 36(1) of the Medical Act 1983 in the light of their report and the reasons therefor, which would be given later. The following are the reasons which their Lordships now give for their report.

3

Introduction

4

The case had been referred to the Professional Conduct Committee for inquiry as to the appellant's conduct on a Notice of Inquiry which set out the factual allegations in a charge which contained a total of thirteen heads. Six of these heads were held to have been proved in the light of the evidence. The allegations which they contained fell into two categories. There were four allegations of sexual misconduct, and there were two allegations of dishonesty. The Chairman summed the matter up in his closing remarks with these words:-

"Dr. Nwabueze, the relationship between doctors and patients depends on trust. The Committee are seriously concerned that you flagrantly abused that trust by forming an improper sexual relationship with Mrs. D who was a particularly vulnerable patient. You also abused your professional position by behaving inappropriately towards one of your practice staff, who was also a patient, and towards another patient.

In addition on two occasions you behaved with deliberate dishonesty.

Your behaviour fell far short of that expected of a registered medical practitioner.

The Committee have judged you to have been guilty of serious professional misconduct in relation to the facts proved against you in the charge and have directed the Registrar to erase your name from the Register."

5

Immediately after this decision had been taken the appellant told his legal advisers that he wished to appeal against it. But events then took an unusual course which the Lordships must first relate before they come to deal with the substance of the appeal.

6

The Preliminary Hearing

7

Shortly after the hearing before the Professional Conduct Committee was concluded on 30th April 1999 one of the members of the Committee, Dr. Colman, contacted the chambers of the appellant's counsel, Mr. David Foskett Q.C., indicating that he had concerns about the way in which the case had been handled by the Committee. Mr. Foskett's clerks invited Dr. Colman to write about this to the appellant's solicitor, Mr. Ralph Shipway, which he then did on 4th May 1999. On receipt of his letter Mr. Shipway decided to meet Dr. Colman to find out whether he would be prepared to state his concerns openly with a view to assisting the appellant with an appeal. A meeting took place between them on 11th May 1999. After taking independent legal advice Dr. Colman informed Mr. Shipway on 9th August 1999 that he felt entitled to assist the appellant in this way. Arrangements were made, after consulting the Bar Council, for a meeting to take place between Dr. Colman and the appellant's counsel and solicitors. Mr. Shipway's firm informed the General Medical Council on 5th November 1999 that it was proposed to meet Dr. Colman on 8th November 1999 to discuss his concerns. These were understood to relate to what had taken place during the Committee's deliberations in camera before the decision was announced. The General Medical Council objected to the appellant's counsel and solicitors entering into discussions with Dr. Colman about what had occurred while the Committee were deliberating in camera. The appellant's solicitors informed the General Medical Council that their view of the law was contested, so the General Medical Council took steps to obtain an injunction against Dr. Colman. It was decided not to proceed with the meeting until the matter had been resolved by the court.

8

On 3rd February 2000 Pumfrey J. ordered that, save as might thereafter be directed by the Privy Council, Dr. Colman was to maintain the confidentiality of, and was not to disclose to anyone, any information concerning what was said or had occurred in the course of the in camera deliberations of any proceedings of the Professional Conduct Committee including that which heard and determined the appellant's case. The Order provided that that nothing in it was to prevent or prohibit Dr. Colman from disclosing any such matters to the Privy Council and that, while all witness statements made in the application to the court and the court's judgment and any information contained therein were to be sealed and not disclosed to anyone without the permission of the court, both Dr. Colman and Mr. Shipway were to be at liberty to provide to the Privy Council copies of the witness statements which they had made in those proceedings together with, in Mr. Shipway's case, the exhibits thereto. A public version of the judgment, with confidential matter excluded, was to be made available as soon as possible.

9

Arrangements were then made for the matter to be brought before their Lordships' Board for a hearing for directions. The appellant's petition for directions stated that information had been received by his advisers indicating that there may have been bias or an appearance of bias on the part of a member of the Committee and use of evidence other than that received during the proceedings. It was said that it would materially assist in the determination of whether such bias or appearance of bias existed, or the use of evidence other than that received during the proceedings had occurred, if the transcript of the private deliberations of the Committee on his case were disclosed to the appellant. Their Lordships were invited to make an order to that effect.

10

A hearing for directions on this matter was held on 9th February 2000. The appellant and the General Medical Council were represented at this hearing, as was Dr. Colman. After hearing counsel their Lordships decided that, except in regard to one matter, insufficient grounds had been made out for outweighing the very strong presumption which exists in favour of preserving the confidentiality of the deliberations of the Professional Conduct Committee when they are considering their decision in camera. They held that the appellant was not entitled to any information as to what took place during those deliberations either by way of interviewing Dr. Colman or by way of seeing a transcript of them or by way of seeing the full judgment of Pumfrey J. of 3rd February 2000. In reaching their decision their Lordships had in mind the following observations which Lord Steyn made when he was delivering the judgment of the Board in Roylance v. General Medical Council (19th January 1999, reported in The Times 27th January 1999) in which an application for disclosure of a transcript of the deliberations of the Professional Conduct Committee in Dr. Roylance's case was refused:-

"Their Lordships are satisfied that such an order would be inappropriate. It is acknowledged to be an unprecedented attempt to probe into in camera discussions. Counsel submits that the exceptional circumstances of the case warrant such an order. Their Lordships are wholly unpersuaded that this case can be so categorised. If the submission were to be accepted it would seriously inhibit freedom of discussion during in camera sessions. It is ruled out in the present case by public interest immunity attaching to the in camera discussions of the Professional Conduct Committee. Their Lordships are not satisfied that there are any good or sufficient reasons for overriding that immunity."

11

The one matter on which their Lordships were of the view that information as to what took place during the in camera deliberations should be made available to the appellant related to an alleged breach of the proviso to rule 4 of the General Medical Council (Legal Assessors) Rules 1980. Their Lordships were satisfied that the appellant was entitled to the basic factual material which he needed to advance the argument that advice which the legal assessor gave to the Committee while they were deliberating in camera was given in breach of this rule. Leading counsel for the General Medical Council, Mr. Englehart Q.C., was invited to read the transcript with a view to seeing whether he could assure the appellant that there was no discussion by the Committee as to whether it would be prejudicial to the discharge of their duties for the legal assessor to have tendered the advice in the presence of the parties which he tendered in the absence of the parties while the Committee was in camera.

12

On 14th February 2000 Mr. Englehart wrote to Mr. Foskett to inform him of what he had found on reading the transcript of the deliberations in camera. He said that the advice which the legal assessor tendered during the in camera discussions, which he announced to the parties as soon as the Committee had completed these discussions and resumed the hearing in public, was not tendered in response to any question from the Committee but was proferred by the legal assessor...

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