Dr. John Roylance v The General Medical Council

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Clyde
Judgment Date24 Mar 1999
Judgment citation (vLex)[1999] UKPC J0324-1
Docket NumberAppeal No. 49 of 1998

[1999] UKPC J0324-1

Privy Council

Present at the hearing:-

Lord Slynn of Hadley

Lord Clyde

Lord Hobhouse of Woodborough

Appeal No. 49 of 1998
Dr. John Roylance
Appellant
and
The General Medical Council
Respondent
1

[Delivered by Lord Clyde]

2

On 18th June 1998 the Professional Conduct Committee of the General Medical Council found the appellant guilty of serious professional misconduct and directed that his name be erased from the Register. The decision followed a hearing before the Committee which had lasted for 74 days and involved charges not only against the appellant but also against two surgeons, Mr. James Wisheart and Mr. Janaradan Dhasmana. All three of the charges were inter-related and concerned a number of cardiac operations carried out between 1990 and 1995 on very young children in the Bristol Royal Infirmary. The operations detailed in the charges were of two kinds, some were for the correction of atrioventricular septal defects ("AVSD") and the others were arterial switch ("AS") operations for the transposition of the great arteries. The charges arose out of a concern at the number of patients who had failed to survive their operations. At the end of the inquiry before the Committee the charges were found to relate to three AVSD operations carried out by Mr. Wisheart in July 1993 and in March and August 1994, and three AS operations carried out be Mr. Dhasmana in September and October 1993 and on 12th January 1995. This last was on a child named Joshua Loveday. Neither Mr. Wisheart nor Mr. Dhasmana has appealed.

3

The appellant was the District General Manager of the Bristol and Weston Health Authority from 1985 until 1991 when he became Chief Executive Officer of the United Bristol Healthcare NHS Trust. He held that post until his retirement on 20th October 1995. His responsibility extended over nine hospitals and some 6,500 staff. He had qualified as a doctor in 1954 and had been appointed a consultant radiologist in 1964. During the period of his service as General Manager and later as Chief Executive Officer he retained his medical registration and under the terms of his contract undertook one clinical session per week as a consultant member of staff. He had no specialist expertise in the particular area of paediatric cardiac surgery and medicine with which the charges were concerned. His position both as Chief Executive and as a registered practitioner has given rise to one of the particular problems in the case.

4

The Committee held that he was guilty of serious professional misconduct as a registered medical practitioner on the grounds, to put it shortly, of a failure to take action over the years when concerns were being raised about the excessive mortality of the infants and of a failure to take any steps in the case of Loveday to prevent the operation from proceeding. The matter of carrying out the operation in that case had given rise to particular concern and there had been a meeting of a number of surgeons, cardiologists and anaesthetists on 11th January 1995, the day before the operation, to discuss and determine whether it should proceed. The decision was taken to operate but the child did not survive.

5

The various matters raised by the appellant before their Lordships fall into four chapters. In the first place there was an allegation of bias on the part of the chairman of the Committee which was advanced in the course of the inquiry and renewed and developed before the Board. Secondly, there were a number of issues raised under reference to the facts found and established by the Committee. Thirdly, there was the problem which has just been mentioned of the existence and extent of any liability on the appellant for professional misconduct as a medical practitioner while he was at the same time the Chief Executive Officer of the hospital. Finally, a challenge was made against the sentence imposed by the Committee. Their Lordships now turn to consider each of these four matters in order. The first is the matter of bias.

6

One essential element in a fair hearing is the requirement that the decision-maker should be impartial. But while the proposition is easy to state the analysis and the application of it is more difficult. Impartiality calls for a state of mind which is free from any influences extraneous to the merits of the particular case, which is capable of a dispassionate inquiry and an objective judgment, and which is not turned aside by any motivation to favour one side as against the other. But the actual state of a person's mind is not always readily discoverable and absolute perfection may not be readily attainable. More subtly the decision-maker may be influenced quite unconsciously in the one direction or the other by extraneous considerations in ways which may be evident to or suspected by others but of which he is unaware. The insidious nature of bias makes its identification elusive. The law does what it can by recognising that bias may be apparent as well as actual. Thus proof of an appearance of bias may be as fatal as proof of a state of mind which is actually partial. That is consistent with and supported by the basic idea, enunciated by Lord Hewart C.J. in Rex. v. Sussex Justices, Ex parte McCarthy [1924] 1 K.B. 256, at 259 that "justice should not only be done, but should manifestly and undoubtedly be seen to be done". The apparent position is then as important as the reality and may be effective regardless of the reality. The confidence of the parties in the decision to be pronounced in their dispute and the confidence of the public in the processes of justice demand no less.

7

Bias may occur in a variety of forms. One situation is where the decision-maker has some particular connection with the dispute, in respect of the parties or the subject matter or the outcome, where it can be said that he is judge in his own case and where it may be supposed that he may have some motivation towards a particular result. This is the category of case which Lord Browne-Wilkinson has recently called "automatic disqualification" ( Reg. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 2) [1999] 2 W.L.R. 272, 281. It was long ago recognised that any direct pecuniary interest, however small, will disqualify a person from acting as a judge in the matter ( Reg. v. Rand (1866) 1 L.R.1Q.B. 230 at p. 232). This kind of direct interest may be financial or proprietary, but where the interest is not of that kind it must be substantial and the assessment of that has to depend upon the particular circumstances of the case.

8

But bias may extend beyond the limits of what may be strictly included within the description of being judge in one's own case. The judge may have no actual bias and no interest in the case nor in its outcome, but nevertheless by such things as his behaviour, including his management of the hearing, there may arise a suspicion of partiality. Here the examples may merge into the wider complaint that there has been no fair hearing, but to the extent that they may suggest a partiality for the one side or the other they may properly be analysed as examples of bias.

9

In relation to this category of case there has been some debate on the formulation which expresses the test in the most appropriate words. In Reg. v. Gough [1993] A.C. 646 the preferred formulation of the test was that of a real danger of bias. That has been criticised on the grounds that it does not make it sufficiently clear that a possibility rather than a probability of bias may be fatal, that it stresses the idea of danger rather than the appearance of bias, and that in removing any reference to the view of the reasonable third party it may prefer the court's view of the risk to the court's view of the public view of the risk. Their Lordships were referred to Webb v. The Queen (1994) 181 C.L.R. 41 where the problem arose whether certain conduct on the part of a juror warranted the juror's disqualification. The court rejected the formulation proposed in Gough and preferred the greater latitude of the test of a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or the jury would not discharge their task impartially. Such an approach may minimise the risk of unnecessary damage to the reputation of the person concerned and make it easier for a member particularly of a lay tribunal to stand down without loss of face. It may reduce the embarrassment which a challenge on the ground of bias may understandably evoke not only for the person accused of bias but also for the person making the allegation. As was noted in Pinochet, the reasonable suspicion test has been adopted in Scotland (e.g. Doherty v. McGlennan, 1997 S.L.T. 444), but in the Pinochet case it was not necessary to carry out any review of the point.

10

The differences in the terminology used to formulate the test may not reflect any basic difference of approach once the intended import of the particular words used is understood. As Toohey J. observed in Webb v. The Queen supra at p. 88 in reference to the tests of "real danger" and "reasonable apprehension":-

"when proper emphasis is placed on the reasonableness of any apprehension likely to arise, that is, apprehension on the part of a fair-minded observer, there may be in truth little difference in the application of the two tests."

11

Their Lordships do not find it necessary to explore the principle of the matter further in the present case. Even adopting the formula preferred in Gough, they are satisfied that the appellant has failed to establish a case of bias.

12

At the outset of the hearing there was no evident cause for the allegation of bias. In particular there were no grounds for questioning the propriety of the President of the G.M.C....

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