Dr. Manjula Krippendorf v The General Medical Council
| Jurisdiction | UK Non-devolved |
| Judge | Sir Christopher Slade |
| Judgment Date | 24 November 2000 |
| Judgment citation (vLex) | [2000] UKPC J1010-1 |
| Date | 24 November 2000 |
| Court | Privy Council |
| Docket Number | Appeal No. 43 of 1999 |
[2000] UKPC J1010-1
Privy Council
Present at the hearing:-
Lord Saville of Newdigate
Sir Ivor Richardson
Sir Christopher Slade
[Delivered by Sir Christopher Slade]
This is an appeal against a determination of the Committee on Professional Performance ("the CPP") of the General Medical Council ("the Council") on 22nd July 1999, when the CPP, having determined that the standard of the appellant's professional performance had been seriously deficient, directed that her registration on the Medical Register should be suspended for a period of twelve months. The CPP further ordered that, such being necessary for the protection of members of the public and in the appellant's best interests, her registration should be suspended with immediate effect. At the conclusion of the hearing, their Lordships announced that, for reasons to be given later, they had decided humbly to advise Her Majesty that the appeal ought to be allowed and that the determination of the CPP should be set aside. The following are the reasons which their Lordships now give for their Report.
The statutory background
The Council is charged by statute with the maintenance of the Medical Register and thus with ensuring, so far as it is able within the limits of its powers, that the public is appropriately protected by the restriction of a doctor's registration if that is necessary. Before the enactment of the Medical (Professional Performance) Act 1995 (section 1 of which was incorporated in the Medical Act 1983 as section 36A), these powers were limited to removing or restricting a doctor's registration in cases of serious professional misconduct or convictions of criminal offences or serious impairment of fitness to practise for reasons of health. These matters had been and still are dealt with by the Professional Conduct Committee or the Health Committee of the Council. Following such enactment however, two new Committees namely the CPP and the Assessment Referral Committee, have been established and the Council has been given powers, through the CPP, to suspend a doctor's registration, or impose conditions on it, in cases where the CPP find that the standard of his professional performance has been seriously deficient. References hereafter to "the 1983 Act" are intended as references to the Medical Act 1983 as amended by the Medical (Professional Performance) Act 1995.
The CPP made the directions now under appeal in reliance on section 36A of the 1983 Act, of which the most material provisions are as follows:-
"(1) Where the standard of professional performance of a fully registered person is found by the Committee on Professional Performance to have been seriously deficient, the Committee shall direct –
(a) that his registration in the register shall be suspended (that is to say, shall not have effect) during such period not exceeding twelve months as may be specified in the direction; or
(b) that his registration shall be conditional on his compliance, during such period not exceeding three years as may be specified in the direction, with the requirements so specified.
…
(7) Where the Committee on Professional Performance give a direction under this section for suspension or for conditional registration, or vary the conditions imposed by a direction for conditional registration, the Registrar shall forthwith serve on the person to whom the direction applies a notification of the direction or of the variation and of his right to appeal against the decision in accordance with section 40 below.
…
(9) While a person's registration in the register is suspended by virtue of this section he shall be treated as not being registered in the register notwithstanding that his name still appears in it."
Their Lordships make two preliminary observations on the effect of section 36A. First, while the section could have been drafted so as to require a test of the practitioner's professional competence, that is not the test which the legislature has chosen. The opening words of section 36A(1) make it clear that it is the standard of the past professional performance of the practitioner in the work which he has actually been doing to which the CPP must direct its attention. Secondly, neither the 1983 Act nor the Rules made thereunder contain any definition of "seriously deficient performance". In a booklet published in November 1997 and entitled "When your Professional Performance is Questioned", the Council indicated the interpretation of the phrase which it intended to adopt, as follows:-
"'Seriously deficient performance' is a new idea. We have defined it as 'a departure from good professional practice, whether or not it is covered by specific GMC guidance, sufficiently serious to call into question a doctor's registration'. This means that we will question your registration if we believe that you are, repeatedly or persistently, not meeting the professional standards appropriate to the work you are doing - especially if you might be putting patients at risk. This could include failure to follow the guidance in our booklet Good Medical Practice."
In view of the use of the past tense in section 36A, the words "have been" would be more appropriate than the word "are" in both places where it appears in the third sentence of this passage. With this qualification, their Lordships see no reason to criticise the general guidance thus given in the booklet, provided that it is not regarded as exhaustive.
Section 38 of the 1983 Act provides that, on giving a direction for suspension under section 36A in respect of any person, the CPP "if satisfied that to do so is necessary for the protection of members of the public or would be in the best interests of that person, may order that his registration in the register shall be suspended forthwith …".
Sections 40(1)(aa) and 40(4) confer a right of appeal to Her Majesty in Council from a decision of the CPP under section 36A, but section 40(5) imposes a restriction not applicable to appeals from decisions of the Professional Conduct Committee by confining such right of appeal to "a question of law". This is the first appeal from a decision of the CPP. Their Lordships therefore consider it advisable to give a fuller summary of the somewhat complicated procedures which led to the decision than may be necessary or appropriate in later cases.
The performance procedures in the present case have been regulated by the General Medical Council (Professional Performance) Rules Order of Council 1997 (S.I. 1997 No. 1529) ("the Rules") as corrected in November 1997 and March 1998. The Rules, which provide a comprehensive framework for the procedures, came into force on 1st July 1997. The CPP are therefore entitled only to look at matters which occurred after 1st July 1997.
The appellant's background
The appellant, who was born in 1947, married a German citizen in 1992 and is herself a German citizen. She has been practising as a doctor in a number of parts of the world since 1969. In her curriculum vitae, she summarises her educational qualifications as follows:-
"M.B.B.S.
Poona University, India (1/64-8/69)
M.P.H.
Johns Hopkins University, USA (6/81-9/82)
M.S. (Education)
Johns Hopkins University, USA (1/81-6/83)
Post Doctoral Fellowship
Paediatrics Neuro-developmental, School of Medicine, John Hopkins University, USA (1/81-6/81)
Post Doctoral Fellowship
Maternal & Child Health, School of Public Health, Johns Hopkins University, USA (9/82-6/83)
Certificate of Training
General Practice of Medicine, Bezirksarztekammer Sudwurtemberg, Germany (3/98)"
From September 1969 to June 1974, after leaving Poona University, she served with the Army Medical Corps of the Indian Armed Forces in various large military teaching hospitals, where she did her internship. From November 1974 to December 1980 she worked as Senior Paediatric Registrar with the Bendel State Health Service in a 40-bedded unit at the Specialist Hospital, Benin City, Nigeria. From July 1983 to July 1984 she did research work on child health as an Associate at the Department of International Health, School of Public Health, John Hopkins University, Baltimore, U.S.A. From September 1983 to March 1985 she worked as Director of Medical Programs at the Okhla Centre for Development Disability, New Delhi, India. From June 1985 to August 1992 she worked as Director of Programmes at Neuro-Development Clinics within multi-disciplinary settings at New Delhi and Baroda. Between July 1988 and June 1989 she also did further research on child health with John Hopkins University. From December 1992 to June 1993 she worked as a Medical Consultant with the United Nations Development Program, New York, U.S.A. From June 1993 to December 1993 she was employed as Medical Co-Ordinator with the National Injury Prevention Program for Romania and Spinal Cord Injury Project, Bucharest and the International Federation of the Red Cross and Red Crescent Societies in Geneva, one half of the job involving working with spinal cord-injured children and adolescents. From March 1994 to September 1994 she worked on research at the Department of Paediatrics at the University of Dusseldorf. From May 1995 to May 1996 she carried on a general medical practice in Stuttgart. In March 1996 she obtained the qualification of Abbrobationsurkunde (Approbation) in Stuttgart. Her curriculum vitae lists a large number of Reports given by her concerning child health or public health in many parts of the world and a number of papers on such matters published or read at conferences. She appears to have had extensive expertise in many parts of the world in training and in health promotion in various aspects...
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