Dr. Gnanapragasam Anton Joseph Selvanathan v The General Medical Council

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Hope of Craighead,The Hearing
Judgment Date11 October 2000
Judgment citation (vLex)[2000] UKPC J1011-1
Docket NumberAppeal No. 21 of 2000

[2000] UKPC J1011-1

Privy Council

Present at the hearing:-

Lord Hope of Craighead

Lord Hobhouse of Woodborough

Sir Anthony Evans

Appeal No. 21 of 2000
Dr. Gnanapragasam Anton Joseph Selvanathan
Appellant
and
The General Medical Council
Respondent
1

[Delivered by Lord Hope of Craighead]

2

This is an appeal against a determination of the Professional Conduct Committee on 18th February 2000 finding that the appellant, who is a registered medical practitioner, had been guilty of serious professional misconduct. In the light of that finding the Committee directed that for a period of twelve months his registration on the Medical Register was to be conditional on his compliance with the requirements (1) that he was not to engage in any single-handed practice, (2) that he was to submit to an objective assessment of his clinical knowledge and skills with particular reference to his communication skills and relationships with colleagues and patients and (3) that he was to demonstrate throughout that assessment that he was fit to resume in unrestricted practice. The appellant does not take issue with the decision of the Committee on the question of penalty. His appeal is directed to the finding that he was guilty of serious professional misconduct.

3

The appellant qualified in 1974 in Sri Lanka at the Colombo Medical School. He obtained a further qualification in 1978 from the Royal College of Surgeons of Edinburgh. Between 1979 and 1981 he worked as the medical officer to a Catholic mission in Africa, after which he came to this country. He re-qualified as a physician with the Royal College of Physicians in Edinburgh and the Royal College of Physicians and Surgeons of Glasgow. He then worked in a variety of positions as a registrar before setting himself up in general practice in London with five other practitioners. He became a full partner in that practice in 1996. He remained with the practice until March 1999 when he left to set up on his own account as a general practitioner.

4

One of the patients of the practice of which the appellant was a partner in 1996 was Mrs. Agnes Sewell, who was aged 73. She lived with her daughter Pauline Sewell in a flat in Deptford. Mrs. Sewell died on 17th December 1996. After her death her daughter Pauline made a complaint to Lewisham Community Health Council, which was her local community health council. She alleged that, although requested to do so, the appellant had not made a home visit to her mother before her death. The implication of her complaint was that, had he made such a visit, Mrs. Sewell might still be alive. Lambeth, Southwark and Lewisham Health Authority was invited to mediate between Miss Sewell and the appellant's practice. During the investigation of the complaint the appellant wrote a number of letters to the health authority. The charge of serious professional misconduct related solely to the way in which the appellant responded to the complaint. It was not suggested by the respondent that a home visit would have prevented Mrs. Sewell's death or that the appellant was guilty of serious professional misconduct when he declined to visit her.

5

The Notice of Inquiry, as amended at the outset of the hearing on 18th February 2000, stated that the matters into which the inquiry was to be held into the appellant's conduct were the following:-

"1a. At the material times you were general practitioner for Mrs. Agnes Sewell,

b. On 17th December 1996, Pauline Sewell, Mrs. Sewell's daughter, telephoned your surgery at 17.02 hours and spoke to you over the telephone about her mother's condition,

c. Miss Sewell subsequently made a complaint that you did not visit her mother at home when requested to do so;

2a. In your letter of response to Lambeth, Southwark and Lewisham Health Authority's inquiry about the complaint dated 6th October 1997 you wrote

(i)'To the best of my knowledge I remember that I received the call during the morning surgery',

(ii)'I remember that the prescription was not picked up at 12 noon at the end of the morning surgery and again at 4.00pm before the start of the evening surgery',

b. That information was

(i)False,

(ii)Misleading;

3a. In responding to Miss Sewell's complaint, your letters questioned the circumstances leading to Mrs. Sewell's death,

b. There was no factual basis for your comments,

c. Your response in this respect was

(i)Inappropriate,

(ii)Intended to mislead subsequent investigations into Miss Sewell's complaint;

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

6

The respondent's case, as explained by counsel in his opening remarks, was that the appellant deliberately gave a false and misleading response to the local health authority in his letter of 6th October 1997, and that in his subsequent letters he deliberately challenged the circumstances of Mrs. Sewell's death by suggesting alternative causes for which there was no factual basis. Counsel said that these responses were highly inappropriate. He also said that the appellant's purpose when he introduced these matters was to avoid or confuse the original complaint against him, which had raised the simple issue as to whether or not he should have visited Mrs. Sewell before her death. The appellant's solicitor said that it was not disputed that the appellant handled the complaint clumsily and that what he did was not in accordance with acceptable practice. But he denied the gravamen of the charge, which was that he acted dishonestly.

The Hearing
7

At the outset of the hearing the appellant admitted the factual allegations in heads 1(a), (b) and (c) and 2(a)(i) and (ii). He did not admit head 3(a), and he denied heads 2 (b), 3(b) and (c). The statements of all the witnesses, including Pauline Sewell, were accepted by his solicitor and all the relevant correspondence was agreed. The only questions of fact which were in issue were those which depended upon inferences from the undisputed evidence. Oral evidence as to the cause of Mrs. Sewell's death was given by Lieutenant Colonel Neil Ineson, a consultant general surgeon at Frimley Park Hospital, Camberley with an interest in cardiology. His evidence was that a home visit by the appellant would probably not have prevented Mrs. Sewell's death. But he also said that he could find nothing to support the alternative causes for her death that the appellant had suggested. The appellant gave evidence on his own behalf, and evidence was led from two witnesses as to his good character.

8

After the conclusion of the appellant's evidence the Legal Assessor asked the respondent's counsel whether his allegation was that the statements in the letter of 6th October 1997 referred to in heads 2(a)(i) and (ii) were deliberately misleading and, if so, whether he would clarify the points which the Committee had to consider under heads 2(b)(i) and (ii). After discussion counsel for the respondent agreed that the difficulty could be solved if head 2(b) were to be amended so that it read "that information was [(i)] known by you to be false and [(ii)] intended to be misleading". The charge was then amended to that effect with consent.

9

The decision of the Committee, after considering the evidence, was that heads 2(b)(i) and (ii) as amended and heads 3(a), (b) and (c) had been proved. Counsel for the respondent was then invited to address the Committee under rule 28 of the General Medical Council Preliminary Proceedings Committee and Professional Conduct Committee (Procedure) Rules Order of Council 1988 (S.I. 1988 2255) ("the 1988 Procedure Rules"), which provides:-

"28(1) Where, in proceedings under rule 27, the Committee have recorded a finding, whether on the admission of the practitioner or because the evidence adduced has satisfied them to that effect, that the facts, or some of the facts, alleged in any charge have been proved, the Chairman shall invite the Solicitor or the complainant, as the case may be, to address the Committee as to the circumstances leading to those facts, the extent to which such facts are indicative of serious professional misconduct on the part of the practitioner, and as to the character and previous history of the practitioner. The Solicitor or the complainant may adduce oral or documentary evidence to support an address under this rule.

(2) The Chairman shall then invite the practitioner to address the Committee by way of mitigation and to adduce evidence as aforesaid."

10

The expression "the Solicitor" in rule 28(1) means any solicitor, or any firm of solicitors, appointed by the respondent or any partner of such firm: rule 2(1).

11

The respondent's counsel addressed the Committee briefly in relation to the issue of serious professional misconduct. The Chairman did not in terms invite the solicitor for the appellant to address the Committee under rule 28(2) at this stage. But the solicitor made the following statement in reply to the address by the respondent's counsel:-

"I do not argue that on the facts found this is not capable of being serious professional misconduct. It is a matter for you and I do not seek to argue the point. The charges you have found proved are serious."

12

After the Committee had deliberated further the Chairman announced their determination in the following terms:-

"Dr. Selvanathan, the public has a right to expect that doctors will be honest and trustworthy. They should also be able to rely on them to respond in an honest and constructive manner about any concerns or complaints brought to their attention by patients or complaint-handling bodies.

The facts found proved against you have shown that you gave false and misleading information when responding to the complaint by Miss Sewell. Those remarks were wholly inappropriate and caused great distress and offence to Miss Sewell, who had a...

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