Haikel v General Medical Council
| Jurisdiction | UK Non-devolved |
| Judge | Sir Philip Otton |
| Judgment Date | 04 July 2002 |
| Neutral Citation | [2002] UKPC 37 |
| Date | 04 July 2002 |
| Court | Privy Council |
| Docket Number | Appeal No. 69 of 2001 |
[2002] UKPC 37
Privy Council
Present at the hearing:-
Lord Slynn of Hadley
Lord Steyn
Sir Philip Otton
[Delivered by Sir Philip Otton]
The appellant, Dr Mohammed Shaker Haikel, appeals from a direction of the Professional Conduct Committee ("PCC" or "Committee") of the respondent Council on 27 July 2001 that his name be erased from the Register in consequence of the proof of certain of the facts set out in the Notice of Inquiry and a determination that in relation to those acts he was guilty of serious professional misconduct.
Background
Dr Haikel was a registered medical practitioner in a single handed general practice at the Andover Medical Centre, Hornsey Road, London, N7. The charges against the appellant were broadly to the effect that he had conducted intimate examinations of female patients which were not clinically appropriate and that he had not offered chaperones to these patients. The specific charges which were found to be proved by the PCC were as follows:
"That, being registered under the Medical Act
1. At the material times you were practising as a General Practitioner at Andover Medical Centre, 270-282, Hornsey Road, London, N.7.
2. At various times, the following patients were registered with you namely,
a. Ms A
b. Ms B
c. Ms C
d. Ms D
e. Ms E
f. Ms F
3a. In the autumn of 1988 you were consulted by Ms A in relation to leg pains.
b. At that consultation you
i. questioned Ms A about her sexual experiences,
ii. performed a vaginal examination,
c. Your questioning of the patient as alleged in 3b(i) above was inappropriate,
d. The vaginal examination referred to in 3b(ii) above was inappropriate in that it was not clinically indicated,
e. The examination was performed in a manner that was:
i. unprofessional and/or
ii. improper.
…
4a. Between November 1991 and December 1995 you were consulted by Ms B ..
b. During such consultations you frequently performed vaginal examinations,
c. Such frequent examinations were inappropriate in that they were not clinically indicated,
d. The examinations were performed in a manner that was
i. unprofessional and/or
ii. improper
e. At no stage during the consultations was the patient offered a chaperone,
5a. Between December 1994 and December 1996 you were consulted by Ms C …
b. During such consultations you frequently performed vaginal examinations,
c. Such frequent examinations were inappropriate in that they were not clinically indicated,
d. The examinations were performed in a manner that was,
i. unprofessional
…
e. The patient was not offered a chaperone during the initial consultations.
6a. On 9th December 1996 you were consulted by Ms C
…
b. You carried out:
…
(ii) a vaginal examination
c. Neither examination was appropriate in that neither was clinically indicated.
d. Both examinations were performed in a manner that was:
i. unprofessional and/or
ii. improper
7a. Between 1992 and late December 1996 you were consulted by Ms D in relation to a number of medical complaints including abdominal pain,
b. During such consultations you frequently performed vaginal examinations,
c. Such frequent examinations were inappropriate in that they were not clinically indicated,
d. The examinations were performed in a manner that was:
i. unprofessional and/or
ii. improper.
e. The patient was rarely offered a chaperone.
8a. On 16th and 21st December 1994 you had occasion to examine Ms D's back.
b. On each occasion the examination was carried out in an appropriate manner;
9a. On several occasions including December 1996 you examined Ms D's breasts,
b. These examinations were performed in a manner that was:
i. unprofessional and/or
ii. improper
c. The examination in December 1996 was also inappropriate because it was not clinically indicated;
10a. Between December 1993 and 1996 you were consulted by Ms E on a number of occasions …
b. During a number of such consultations you performed vaginal examinations.
c. Such examinations were inappropriate in that they were not clinically indicated,
d. The examinations were performed in a manner that was:
i. unprofessional and/or
ii. improper
e. On an occasion in November 1995 you examined Ms E's back in a manner that was:
i. unprofessional and/or
ii. improper;
11a. Between 1993 and 1997 you were consulted by Ms F. on a number of occasions."
The PCC found that allegations in relation to Ms F were not proved.
The PCC then considered whether these findings amounted to serious professional misconduct and what penalty to apply. The appellant was ultimately found guilty of serious professional misconduct and the Chairman announced the determination and direction of the Committee in the following terms:
"Mr Hockton, the Committee have received a great deal of evidence in this case. It has been established that the Doctor has been a thorough and conscientious GP. Two expert witnesses have confirmed that they considered the Doctor's record-keeping to be good, and agreed that he readily undertakes referrals. There is no doubt that he retains the confidence of many of his patients.
We have heard and found proved the testimony of five female patients, all of whom initially held the Doctor in high regard and trusted him, that between 1988 and 1996 he undertook a number of unprofessional and improper examinations of those patients. In some instances, while the Doctor accepted the fact of the consultations, he denied the witnesses' accounts of them; in others he maintained that the consultations had never taken place. These latter consultations he had not recorded in the medical notes. He claimed that the patients who have complained about him lied to this Committee or misinterpreted their experiences.
The Committee did not accept that the poor memory of these patients for inconsequential details of their visits to the doctor undermines their clear memory of unnecessary examinations performed in an improper manner. The conduct of these examinations, and in one instance inappropriate questioning, abused the trust of vulnerable patients in their Doctor. Nor do the committee accept that the failure of these patients to complain at the time of these events undermines the impact of their evident distress at what he did. They described their confusion, fear and embarrassment. Nor do the Committee accept that failure to change their Doctor immediately denies the reality of their distress. Some were very dependent upon him and were reluctant to take that step having been his patients for many years. Others had their entirely reasonable explanations, which we accept.
The Committee was concerned at the many occasions on which some of these patients were not offered a chaperone, but they accepted that the evidence overall indicated that his practice generally in this regard was rapidly moving with or even ahead of General Practice at the time. Accordingly, the Committee have not found the findings concerning failure to offer a chaperone as a material factor in determining serious professional misconduct. Interest (sic) his case.
The Council's published guidance, Good Medical Practice, makes is clear that successful relationships between doctors and patients depend on trust, and that doctor must respect the privacy and dignity of patients. The doctor has repeatedly failed in this respect. Unprofessional and improper behaviour by a doctor towards patients is always a matter of grave concern to this Committee. Such behaviour undermines the trust which members of the public need to have in the medical profession. The Committee find Doctor Haikel guilty of serious professional misconduct.
The Committee have noted the testimonials from patients and fellow professionals submitted on his behalf. Patients have testified as to their respect for him. Even those who have complained have indicated in their accounts that they have confidence in his ability as a doctor. Nevertheless, the findings against him reflect such a major breach of the principals of Good Medical Practice that the Committee are obliged to take action in the public interest. The Committee have considered carefully what action they should take in relation to his registration. Taking account of the seriousness of his misconduct and their duty to protect the public, they have concluded that it is necessary in the public interest for his name to be erased from the Register.
The effect of the foregoing Direction is that, unless he exercises his right of Appeal his name will be erased from the Register 28 days from today. It is the Committee's present view that it should exercise its power under Rule 33(a)(i)(c) to impose conditions on his registration for so long as it remains in force. The conditions would be exactly those which were imposed by the Interim Orders Committee on 20th October 2000 and under subsequent Orders currently remaining in force." [D7-16C to D7-18A].
The Appeal
It is the appellant's case that the Committee's decision should be overturned for any of the following reasons:
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(1) The Assessor decided the issue of delay for the Committee;
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(2) The decision on delay was wrong;
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(3) The Assessor's advice on the use of propensity evidence (similar fact) was inadequate;
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(4) The penalty was too severe.
Ground One – The Conduct of the Legal Assessor
At the commencement of the hearing before the Committee counsel then appearing for the appellant submitted that the heads of charge should be dismissed on the grounds that there had been an abuse of process and a breach of the appellant's right to a fair trial within a reasonable time under Article 6 of the European Convention of Human Rights. In support of his submission Mr Hockton set out in detail the periods of...
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