R v General Medical Council, ex parte Gee
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DILLON,LORD JUSTICE LLOYD,LORD JUSTICE NICHOLLS,OR |
| Judgment Date | 19 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0519-5 |
| Docket Number | 86/0491 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 May 1986 |
[1986] EWCA Civ J0519-5
Lord Justice Dillon
Lord Justice Lloyd
Lord Justice Nicholls
86/0491
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE MANN)
Royal Courts of Justice
MR. VIVIAN ROBINSON Q.C. and MR. T. D. STRAKER (instructed by Messrs. Waterhouse & Co.) appeared for the Appellants.
THE HON. M. J. BELOFF Q.C. and MR. C. J. R. FLINT (instructed by Messrs. Beachcrofts) appeared for the Respondent.
The main question on this appeal, on which my Lords have differed, is whether the disciplinary proceedings against Dr. Gee can proceed before the Professional Conduct Committee on the charge as at present formulated, or whether that charge is bad for duplicity. As hereafter appears, I find this an artificial question with little relation to reality.
The main reason, as I understand the law, why a duplicitous charge is not allowed in a criminal case is that the jury can, in general, only give a simple verdict of guilty or not guilty on each charge in the indictment. They cannot state their findings of fact or bring in a verdict of partly guilty. Consequently, if a charge is duplicitous and in truth embraces several charges, the judge, when he comes to pass sentence, has no means of knowing on which of those charges the jury have really convicted. All that, however, has no application to a disciplinary hearing before the Professional Conduct Committee. There is no jury on such a hearing and the members of the Committee who make the findings of fact, and are bound by the Rules to state those findings, are the same persons as will pass sentence if they have found serious professional misconduct proved.
Serious professional misconduct is (apart from conviction. of a criminal offence which is not in question in the present case and which I therefore ignore for the purposes of this judgment) the only offence for which the General Medical Council can discipline, or punish, a registered medical practitioner. This is under section 36 of the Medical Act 1983. Under the relevant Rules, in S.I. 1980 No. 858, as soon as may be after a case has been referred to the Professional Conduct Committee for inquiry, the solicitor appointed by the General Medical Council is to send to the practitioner a "Notice of Inquiry" which is to be in the form set out in the Second Schedule to the Rules with such variations as circumstances may require and is to specify in the form of a charge or charges the matters into which the inquiry is to be held. See Rule 17. Plainly, there can be more than one charge, although there need not be and, on the prescribed form, there is at the end of the charge or charges to be an averment that, in relation to the facts alleged, the practitioner has been guilty of serious professional misconduct.
Under Rule 30, the Committee is, on the conclusion of the first stage of the hearing of the case, to consider and determine as respects each charge which remains outstanding which, if any, of the facts alleged in the charge have been proved to their satisfaction. If the Committee determine as respects any charge either that none of the facts alleged in the charge has been proved to their satisfaction or that such facts as have been proved would not support a finding of serious professional misconduct, the Committee is to record a finding that the practitioner is not guilty of such misconduct in respect of the matters to which that charge relates. Then, under sub-rule (3) of Rule 30, the Chairman is to announce the determination or the finding of the Committee.
Rule 31 then provides that, if under Rule 30 the Committee have determined as respects any charge that the facts or some of the facts alleged in the charge have been proved to their satisfaction, and the Committee have not on those facts recorded (under Rule 30) a finding of not guilty, there is to be opportunity for argument as to the extent to which such facts are indicative of serious professional misconduct, and for pleas and evidence in mitigation. The Committee is then under Rule 33 to determine whether in relation to the facts proved they find the practitioner to have been guilty of serious professional misconduct.
It appears from the observations of Lord Griffiths in giving the opinion of the Privy Council in the recent case of Datta v. General Medical Council that the Professional Conduct Committee have felt some difficulty about how the Chairman's announcement under sub-rule (3) of Rule 30 ought to be expressed. I have no doubt at all in the context of these Rules that the Chairman's duty must cover announcing the determination of the Committee, as respects each outstanding charge, as to which, if any, of the facts alleged in the charge have been proved to their satisfaction. The facts alleged in the charge include, of course, the facts alleged in particulars of the charge subsequently given, in particular, in Dr. Gee's case the names of the patients allegedly concerned in each of the sub-heads (a) to (d) of the charge. The Chairman must say, concisely, no doubt, but clearly, which of the facts alleged in each charge, with reference to the names in the particulars, have been found proved.
Even if, therefore, the charge is technically duplicitous, the practitioner will be told which parts of the charge—or which charges within the charge—have been found proved.
The charge against Dr. Gee as at present formulated is in a comprehensive form, embracing allegations in respect of eight patients in a single charge. It is very similar to the charge which was held proved against Dr. Peatfield in the recent case, heard on appeal by the Privy Council of Peatfield v. General Medical Council (1986) 1 W.L.R. 243. There are indications from other recent disciplinary cases that this type of comprehensive charge is currently much favoured by the General Medical Council or its advisers.
In giving the opinion of the Privy Council in Peatfield Lord Mackay expressed the view of their Lordships that the charge could be fairly read as alleging a course of conduct by the doctor in the conduct of his practice over the period stated. It was this course of conduct, in which patients were treated with the drugs specified in the circumstances referred to under the sub-heads in the charge, which was held to amount to serious professional misconduct. In considering the doctor's appeal against the decision of the Professional Conduct Committee, the Privy Council found nothing in the form of the charge to warrant allowing the appeal, because, at the hearing before the Committee, both parties had treated the charge as a complaint with regard to a course of conduct and the doctor in his own evidence had dealt with the matter very much from the point of view of what his ordinary practice and manner of operation were.
Of course, it does not follow that the approach of the High Court or of this court in considering before a hearing whether a case can proceed without re-formulation of the charge, and the approach of the Privy Council in considering an appeal after a hearing, should be the same. The value of Peatfield lies in their Lordships' understanding of the nature of the charge. But this highlights, to my mind, the unreality of the question we have to consider. The choice is between a single charge, as put forward by the General Medical Council, of a course of conduct in the respects set out in the sub-heads (a) to (d) in the charge, which is intended to be proved by reference to the circumstances of eight individual patients and, on the other hand, eight separate charges, one in respect of each of the eight named patients, as specimens from which a course of conduct in the respects set out in the sub-heads (a) to (d) in the present charge is to be inferred. I cannot see that the difference between these alternatives will have any meaning to a tribunal such as the Professional Conduct Committee which is composed of doctors and not of lawyers, and whichever alternative is adopted will, so far as I can see, make no difference at all to the course and scope of the hearing by the Committee of Dr. Gee's case.
I can well see that, from the point of view of the General Medical Committee, a course of conduct on the part of a doctor in prescribing drugs with potentially harmful side effects to patients without examining the patients adequately or without warning of the side effects, or without advising the patients' general practitioners of what had been prescribed, could more easily be regarded as indicative of serious professional misconduct than a single instance. I see no reason why the General Medical Council should not be entitled to lay a charge of a course of conduct.
It is undesirable that the proceedings of domestic tribunals should be hedged around with unnecessary legal technicalities. The procedure for the hearing of a case by the Professional Conduct Committee under the Rules which I have mentioned is very different from the procedure at a criminal trial. For my part, I cannot see that the form of the charge against Dr. Gee in the Notice of Inquiry, read with the particulars which have been given and are to be given under the order of Mann J., is either confusing or unfair. I see no prejudice to Dr. Gee if the case against him proceeds on that charge. A fortiori, if it be a relevant consideration, the President was not, in my judgment, acting unreasonably in declining to amend the charge.
It follows that, in my judgment, the learned judge was not justified in his ruling that the charge as formulated was bad for duplicity. On this point, therefore, I...
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