General Medical Council v Spackman
| Jurisdiction | UK Non-devolved |
| Date | 1943 |
| Year | 1943 |
| Court | House of Lords |
Medical practitioner - General Medical Council - Removal of name from register - Jurisdiction - Doctor co-respondent in divorce suit - Finding of adultery against him - Right of council to accept findings of Divorce Court - Re-hearing of issue of adultery - Holding of “due inquiry” -
A registered medical practitioner, who was co-respondent in a divorce suit, was found by the Divorce Court to have committed adultery with the respondent therein to whom he stood in professional relationship, and a decree nisi was pronounced which was afterwards made absolute. The General Medical Council gave him notice that a meeting of the council would be held to decide whether his name should be removed from the medical register for infamous conduct in a professional respect. At the hearing he desired to call on the issue of adultery evidence which had not been called on the hearing of the petition although it was then available. The council declined to hear the fresh evidence, but accepted the decree nisi as prima facie proof of adultery, and directed that the practitioner's name should be erased from the register.
Held, that while the council was entitled to regard the decree in the divorce suit as prima facie evidence of adultery, it was bound to hear any evidence tendered by the practitioner, and that, having refused to hear such evidence, it had not made “due inquiry” under s. 29 of the Medical Act, 1858.
APPEAL from the Court of Appeal.
The facts were stated by VISCOUNT SIMON L.C. as follows: Early in 1941 Langton J., sitting in the Divorce Court, had before him the case of Pepper v. Pepper (Spackman cited). The original petition was that of the wife asking for her marriage to be dissolved on the ground of her husband's cruelty. The wife's allegations were supported by the evidence of the doctor who was attending her and who was the respondent in the present appeal. On this issue of cruelty, Langton J. in his judgment, said that he disbelieved the present respondent in toto, and he found against the wife. In his answer the husband alleged that his wife had frequently misconducted herself with the present respondent. The judge found that these parties had committed adultery during 1936, 1937 and 1938, and declared that this conclusion “is not, I think, open to any reasonable doubt at all.” Consequently, the learned judge granted the husband a decree nisi of divorce, with costs against the present respondent, and ordered him to pay the husband 1000l. damages. The decree nisi was made absolute on August 26, 1941. On October 2, 1941, a letter was written to the present respondent on behalf of the appellant council giving notice that information and evidence had been received by the council from which it appeared that “you committed adultery with Barbara Pepper, a married woman, of which adultery you were found guilty by a decree” of the Divorce Court, and further that “you stood in professional relationship with the said Barbara Pepper at all material times and that in relation to the facts so alleged you have been guilty of infamous conduct in a professional respect.” The letter went on to give notice that the General Medical Council would meet on November 26, 1941, “to consider the above-mentioned charge against you and decide whether or not they should direct your name to be removed from the medical register pursuant to s. 29 of the Medical Act, 1858.” The letter requested that any answer, admission or other communication or application “which you may desire to make respecting the said charge or your defence thereto” should be transmitted to the council twenty-one days before the day appointed for hearing. The respondent did not furnish any written answer, as he was requested to do, but he attended the meeting of the council with his solicitor, Mr. Hempson. The solicitor to the council opened the case and placed before the council a certified copy of the decree absolute. Each member of the council had been provided with extracts from the shorthand note of the proceedings in the Divorce Court, including a copy of the judgment of the learned judge. The respondent's solicitor admitted that his client stood in a professional relationship with Mrs. Pepper, but submitted that he should be allowed to call certain evidence which was not before the Divorce Court, with a view to challenging the correctness of the judge's conclusion on the issue of adultery. Mr. Hempson frankly stated that the evidence which he desired to call was available at the hearing of the petition and could with reasonable diligence have been called at the trial, and added that, if he had been then advising the respondent, these witnesses would have been called in the divorce proceedings. The legal assessor to the council pointed out that in such circumstances the Court of Appeal, in an appeal from a decision of the High Court, would not consider that there was adequate reason for allowing the further evidence to be called and that the council's practice in such cases was only to hear evidence in rebuttal if special grounds existed. Mr. Hempson explained that the witnesses he wished to call would provide corroboration of the respondent's statements at the trial which the learned judge had not accepted. After the council had deliberated in private, the president announced that the council could not accede to Mr. Hempson's submission and were not prepared to hear fresh evidence on the question of adultery. Mr. Hempson then addressed the council and called evidence in support of Dr. Spackman's high reputation. Finally, after further private deliberation, the president of the council announced that the facts alleged in the charge had been proved to the council's satisfaction, and directed that the respondent's name should be erased from the medical register. Application was then made to the King's Bench Division on behalf of the respondent for an order of certiorari to quash the direction that the respondent's name should be erased from the register, on the ground that there had been no “due inquiry” within s. 29 of the Medical Act, 1858. Viscount Caldecote C.J. and Humphreys J. were of opinion that the application failed and that the council had made “due inquiry.” Viscount Caldecote saidF1 that he found nothing in the proceedings of the council to shock his sense of justice. Singleton J. was of a different opinion, and considered that, even when a doctor was adjudged to have been guilty of adultery under a decree of the Divorce Court, the council if that finding were disputed, ought to hear evidence tendered by or on behalf of the doctor in an endeavour to establish the contrary. In the Court of Appeal, MacKinnon, Goddard and Clauson L.JJ., were unanimous in adopting the view which had been expressed by Singleton J. MacKinnon L.J. heldF2 that “due inquiry” involved “a full and fair consideration of any evidence that the accused desires to offer, and, if he tenders them, hearing his witnesses.” With this the other two lords justices agreed, and the order of certiorari was granted accordingly. The General Medical Council appealed to the House of Lords.
Harman K.C. and D. Bartley for the appellant council. It was after “due inquiry” within s. 29 of the Medical Act, 1858, that the council judged that the respondent had been guilty of infamous conduct in a professional respect, and, there having been “due inquiry,” the court had no jurisdiction to interfere. The inquiry which the council is obliged to make is not a judicial inquiry. It must satisfy itself, but, if it does so honestly and, in a layman's sense, fairly, the court will not interfere. It is wrong to apply a legal touchstone to this issue. This is not a lis between the council and the medical practitioner, and it does not matter that lawyers would have gone a different way about the inquiry. The fact that a lawyer might think the inquiry could have been better conducted in some other way is not a reason for upsetting the council's decision and not allowing doctors to have their own way in their own house. The council is under a special difficulty in that, unlike the solicitors' disciplinary committee, it cannot administer an oath: see
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